Why Would You Avoid Probate?
Probate is the official way that an estate gets settled under the supervision of the court. A person, usually a surviving spouse or an adult child, is appointed by the court if there is no Will, or nominated by the deceased person’s Will. Once appointed, this person, called an executor or Personal Representative, has the legal authority to gather and value the assets owned by the estate, to pay bills and taxes, and, ultimately, to distribute the assets to the heirs or beneficiaries. The purpose of probate is to prevent fraud after someone’s death. Not all estates must go through probate though. First, if an estate falls below a certain threshold, it is considered a “small estate” and doesn’t require court supervision to be settled. Second, not all assets are subject to probate.
Some kinds of assets transfer automatically at the death of an owner with no probate required. The most common kinds of assets that pass without probate are:
• Joint Tenancy assets: When one joint tenant dies, the surviving joint tenant becomes the owner of the entire asset, without the need for a court order. This is called “right of survivorship
• Tenancy by the Entirety or Community Property with Right of Survivorship: These are forms of property ownership that function like joint tenancy, in that the survivor owns the entire property at the death of the other tenant, but are only available to married couples.
• Beneficiary Designations: Retirement accounts and life insurance policies have named beneficiaries. Upon the death of the account or policy owner, these beneficiaries are entitled to the assets in the account or the proceeds of the policy.
• Payable on Death Accounts/Transfer on Death Accounts: Bank and brokerage accounts can have designated beneficiaries, too. The account owner can fill out forms to designate who should receive the account assets after their death.
Most probate proceedings in Utah are informal. You can use it when the heirs and beneficiaries are getting along, there are no creditor problems to resolve and you don’t expect any trouble. The process begins when you file an application with the probate court to serve as the “personal representative” of the estate. (This is what most people think of as the “executor”). Once your application is approved, you have legal authority to act for the estate. Usually you’ll get what’s called “Letters Testamentary” from the court. Once you get the letters, you need to do these things:
• Send out formal notice to heirs, beneficiaries, and creditors that you know of
• Publish a notice in a local newspaper to alert other creditors
• Provide proof that you’ve mailed notices and published the notice
• Prepare an inventory and appraisal of the estate’s assets
• Keep all the property safe
• Distribute the property (when the estate closes)
Once the property’s been distributed, you close an informal proceeding by filing a final accounting with the court and a closing statement that says you’ve paid all the debts and taxes, distributed the property, and filed the accounting.
Unsupervised Formal Probate
A formal probate, even an unsupervised one, is a court proceeding. That means that a judge must approve certain actions taken by the Personal Representative, such as selling estate property, or distributing assets, or paying an attorney. The purpose of involving a judge is to settle disputes between beneficiaries over the distribution of assets, the meaning of a Will, or the amounts due to certain creditors. The informal probate process won’t work if there are disputes, so that’s when the court gets involved.
Supervised Formal Probate
A supervised formal probate is one in which the court steps in to supervise the entire probate process. The court must approve the distribution of all property in such a proceeding.
The basic process for an executor is:
• Gather the full details of the estate’s assets and debts
• Apply for Grant of Probate (permission to administer the estate and pass out inheritance)
• Complete an inheritance tax return and pay any tax due
• You receive a Grant of Probate
• Repay any of the deceased’s outstanding debts
• Distribute the rest of the estate according to the instructions left in the Will.
This will take about a year for most estates. The exact amount of time will depend on the size and complexity of the estate. International probate can be more complicated and usually takes between six months and two years. Sometimes disputes can come up during probate between the executor, beneficiaries, creditors, or tax authorities. These disputes can delay you in administering the estate. Generally speaking, probate Attorney, also called estate or trust attorneys, help executors of the estate (or “administrators,” if there is no will) manage the probate process. They also may help with estate planning, such as the drafting of wills or living trusts, give advice on powers of attorney, or even serve as an executor or administrator.
What Does a Probate Attorney Do?
What a probate lawyer does will likely depend on whether or not the decedent has drafted a will prior to their death.
When There Is a Will
If an individual dies with a will, a probate lawyer may be hired to advise parties, such as the executor of the estate or a beneficiary, on various legal matters. For instance, an attorney may review the will to ensure the will wasn’t signed or written under duress (or against the best interests of the individual). Elderly people with dementia, for example, may be vulnerable to undue influence by individuals who want a cut of the estate. There are numerous reasons that wills may be challenged, although most wills go through probate without a problem.
When There Is No Will
If you die without having written and signed a will, you are said to have died “intestate.” When this happens, your estate is distributed according to the intestacy laws of the state where the property resides, regardless of your wishes. For instance, if you are married, your surviving spouse receives all of your intestate property under many states’ intestate laws. However, intestacy laws vary widely from state to state. In these situations, a probate attorney may be hired to assist the administrator of the estate (similar to the executor), and the assets will be distributed according to state law. A probate attorney may help with some of the tasks listed above but is bound by state intestacy laws, regardless of the decedent’s wishes or the family members’ needs. A relative who wants to be the estate’s administrator must first secure what is called “renunciations” from the decedent’s other relatives. A renunciation is a legal statement renouncing one’s right to administer the estate. A probate attorney can help secure and file these statements with the probate court, and then assist the administrator with the probate process (managing the estate checkbook, determining estate taxes, securing assets, etc.). Most people, thankfully, don’t need to hire a attorney very many times in their lives. And even if you’ve gone to an attorney for a business matter, real estate transaction, or a divorce, working with a probate attorney is likely to be a different kind of experience. Some things are the same whenever you hire an attorney, though: to fully understand what’s going on, you will probably need to ask a lot of questions, and to keep costs down, you will have to take on some of the routine work yourself.
Claiming Property with a Simple (Small Estate) Affidavit
Utah has a procedure that allows inheritors to skip probate altogether when the value of all the assets left behind is less than a certain amount. All an inheritor has to do is prepare a short document, stating that he or she is entitled to a certain asset. This document, signed under oath, is called an affidavit. When the person or institution holding the property — for example, a bank where the deceased person had an account gets the affidavit and a copy of the death certificate, it releases the asset. The out-of-court affidavit procedure is available in Utah if the value of the entire estate subject to probate, less liens and encumbrances, is $100,000 or less.
Simplified Probate Procedures
Utah has a simplified probate process for small estates. To use it, an executor files a written request with the local probate court asking to use the simplified procedure. The court may authorize the executor to distribute the assets without having to jump through the hoops of regular probate. You can use the simplified small estate process in Utah if the value of the entire estate, less liens and encumbrances, does not exceed the homestead allowance, exempt property, family allowance, costs of administration, reasonable funeral expenses, and reasonable medical expenses of the last illness. The executor files a sworn statement that says the estate assets are less than the value described above, describes the estate assets, declares the executor has distributed assets to the inheritors, and sent the inheritors and known creditors a closing statement and provided them with a closing statement.
Can I avoid probate?
If you don’t own any land, and your estate is less than $100,000, no probate is required. It is possible to arrange your affairs so there is no estate to probate upon your death. For example, you can give all your property away the day before you die. You might also arrange that you own everything jointly with someone who you expect will survive you. “Joint tenancy with rights of survivorship” means simply that every person named on the title as your joint tenant who survives you will own the property without it becoming part of your estate. If you and your spouse own your home as “joint tenants”, upon your death (if you die first) your spouse will own the home without probate to transfer ownership. The same rule applies to ownership of all things you own, although the law does not usually include the power of joint ownership for such items of property as furniture or clothing or jewelry. Joint tenancy has disadvantages. If your child owns your bank account with you jointly, the child could take the money and spend it for herself. If a creditor gets a judgment against your child, the creditor could claim the account. If your child dies before you or gets divorced, the child’s spouse might become a part owner. If your child is a joint owner of your home, she could block you from selling it. There are also tax problems: if you give property away, you may be required to file a gift tax return; and if your child (to whom you deeded a joint tenancy) sells your home after your death, the child may have to pay capital gains tax. Probate of your estate including your home avoids the capital gains tax. Using a trust also avoids this tax. A safer method than joint ownership of monetary/depositary accounts is to designate the accounts to be “Paid on Death” (POD) to named beneficiaries. For example, you can make your spouse a co-owner of your accounts, and designate your children as POD beneficiaries on the account record. After you and your spouse’s deaths, any balance in the account will be paid to your children (who need only prove your death and their identities). Your children are not “owners” of the account while you are alive, so none of the children can make withdrawals, nor can their creditors.
Another option is to give all your property to a trust that manages the property for your benefit while you are alive and distributes the property as you direct when you die. Such a trust is often called a “living trust” because you establish it while you are alive. It is also called “revocable” because you ordinarily retain the right to revoke the trust. If you give your property to a trust, here are some things to think about:
• If the person who manages your trust is also one of your beneficiaries, that person may have conflicting interests. For example, your trust may have to pay for your medical care, which the trustee might not want to do because her inheritance would therefore be smaller.
• A trust does not receive the benefit of the statute of limitations created by publishing a notice to creditors in the same way a probated estate does. Such notices inform all your creditors to file claims within three months or be forever barred.
• If any of your property is not properly given to the trust, there may be an estate that must be probated anyway. Arranging a trust requires careful drafting of all necessary documents. It is helpful to have an attorney prepare the papers. This cost would come out of your pocket, while the cost of a probate is paid by your estate after your death.
What You Need for File A Formal Probate For An Estate
Formal probate matters are typically heard by a judge and may involve one or more hearings before the court. A formal probate proceeding requires both written notice and publication notice before the allowance of the formal petition.
There are different forms you’ll need to file depending on whether or not the decedent (the person who has died) died with a will.
If the decedent died with a will, you’ll need to file:
• Petition for Formal Probate of Will and/or Appointment of Personal Representative
• Surviving Spouse, Children, Heirs at Law
• The original will if it’s available, or if not, a statement of the will’s contents
• A certified copy of the death certificate if it’s available, or if not, an affidavit
• Citation-Return of Service, which will be issued to you by the court
• Decree and Order on Petition for Formal Adjudication
You may also need to file:
• Bond, if you want to appoint a personal representative
• Military Affidavit if not all interested parties (anyone having a property right in or claim against an estate) agree to the petition
• An authenticated copy of the will and appointment if it’s for an ancillary (additional) probate proceeding
• Assent and Waiver of Notice/Renunciation/Nomination/Waiver of Sureties
• Cause of Death Affidavit, Affidavit of Witness to Will, Affidavit of Domicile or no conflict of a conservator (an affidavit stating a conservator of an incapacitated person or minor with an interest in the estate has no conflict of interest)
• Proof of guardianship or conservatorship
• Uniform Counsel Certification Form
Free Initial Consultation with Lawyer
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