First, a Utah attorney is retained by one or more of the decedent’s survivors. The necessary probate documents are then prepared and are filed with the probate court. The court schedules a hearing to give the heirs the opportunity to file objections (or, the heirs can waive this step in writing to speed the process along). If the decedent had a Will, the court determines if the Will is valid. If so, the court “accepts” the Will to probate, then appoints the Personal Representative, who ordinarily administers the estate without court supervision. When the estate has been fully administered, the necessary probate closing documents are filed with the probate court, a final distribution of the decedent’s property is made to the heirs or beneficiaries, and the court discharges the Personal Representative from further responsibility.
What Is Probate?
Probate has four primary purposes:
- Appoint someone with legal authority to act for the deceased person (the “decedent”) and sign his/her name on legal documents (the person who does this is called the Personal Representative);
- Ensure the decedent’s property is collected and preserved, and the decedent’s estate is administered in an orderly fashion;
- Provide for the orderly payment of the decedent’s debts and taxes;
- Distribute the remaining property to the beneficiaries designated in the decedent’s Will (or, if the decedent died without a Will, to the decedent’s lawful heirs).
When is probate necessary?
If the decedent owned assets titled solely in his/her name, and there is no POD/TOD or beneficiary designation in place, probate is necessary to sell the assets or distribute them to the heirs. Because the decedent is obviously no longer available to sign documents, only a court-appointed Personal Representative has authority to sign deeds or other documents to transfer title to the decedent’s assets.
A probate filing may also be necessary in order to identify, give notice to, and provide for payment of the decedent’s creditors. In certain instances where creditors do not file a claim with the decedent’s estate, the debt becomes legally unenforceable.
If probate is not strictly necessary, should it be filed anyway?
Even if the decedent did not own property that requires a probate to transfer title, a probate should still be considered if:
- The decedent left unpaid debts, and you want to cut off potential claims of creditors
- There is a dispute over who is entitled to the decedent’s property
- The decedent left multiple Wills, and it’s not certain which is legally enforceable
- The decedent’s estate needs to make an income tax or estate tax election (which often can only be made by a Personal Representative)
- The person dealing with the decedent’s property wants to be discharged from liability to the heirs after the property is distributed
What are “Letters Testamentary”?
Letters testamentary is a single-page legal document issued by the probate court that identifies the Personal Representative of a decedent’s estate and indicates that the person has the legal authority to act for the decedent. Where there is a Will, these are called “Letters of Administration”. If someone states they will not transfer title to the decedent’s assets or release information about the decedent without letters testamentary, it means they want to deal only with a duly-appointed Personal Representative.
Is There More Than One Option in Probate?
Small Estate Affidavit. You may be able to avoid filing a probate by signing a “small estate affidavit”, which can be used to collect a decedent’s Utah property, except real estate, if the net value of the decedent’s property does not exceed $100,000.
Informal Probate. This option is the most common probate filing in Utah. Informal probate is generally appropriate for simple, uncontested estates. It usually costs less than a formal probate since less attorney time is required.
Formal Probate. This option is appropriate for estates in which one or more heirs object to the appointment of a person as Personal Representative, where the validity of the Will is contested, or in which there is substantial conflict among the heirs or between the heirs and Personal Representative. Formal probate requires a larger number of attorney-prepared court filings, in-court hearings, and formal written orders from the probate court.
Petition For Order Determining Heirs. This option is required when either: (a) the decedent died without a valid Will, or (b) more than three years have passed since the decedent’s death and the Will was not filed for probate within that period. In the latter instance, even the provisions of a valid Will can no longer be legally enforced if no probate is filed within three years after the decedent’s death. In this case the Utah Uniform Probate Code determines who the heirs are, and to what they are entitled.
Ancillary Probate For Out-Of-State Decedents. This option must be used when: (a) the decedent was domiciled outside Utah at the time of death, (b) a probate has been filed there, and (c) the decedent owned Utah real estate or other property that needs to be sold.
When must a probate be filed?
A Will must be submitted for probate within three years of the decedent’s death. However, most families wish to file sooner.
What property can be transferred without a probate?
Any of the decedent’s untitled property, such as personal and household possessions, jewelry, and cash can be transferred without a probate. Doing so, however, may subject such property to the claims of the decedent’s creditors.
In addition, title to certain assets may pass outside of probate because the assets have automatic transfer mechanisms that do not involve probate. Such property includes:
- Asses held in joint tenancy such as a joint bank accounts, or title to real estate
- POD (Pay on Death) bank accounts or TOD (Transfer on Death) stock brokerage accounts
- Proceeds from life insurance policies
- Distributions from annuities, pension plans, IRAs and 401(k)s
- Property held by the trustee of a living trust
How long does probate take?
The time depends on various factors, including:
- The extent, value, and type of property owned by the decedent (and how quickly those assets can be sold)
- Whether a federal estate tax return must be prepared and filed
- How quickly the Personal Representative acts
- Whether the probate is formal or informal
- Whether the decedent’s heirs dispute the Personal Representative’s decisions
- Whether disputes are resolved through negotiation or litigation
How much is the probate filing fee?
In 2011, the filing fee to start a probate is $360. That is the fee charged by the court. Attorney’s fees are extra. Also, the court charges for each copy of the Letters Testamentary it issues.
Where is a Utah probate filed?
A Utah probate is filed with the District Court in the county where the decedent was domiciled at death.
Who does the court appoint as Personal Representative?
If the decedent had a Will, the court appoints the person designated in the Will. If that person will not or cannot accept the appointment, the court appoints the decedent’s second choice, and so on.
If all persons designated in the Will fail to accept appointment as Personal Representative, or if the decedent died without a valid Will, then the court appoints one of the following persons, in the following order of priority: (1) the decedent’s surviving spouse who is also a beneficiary under the Will, (2) another beneficiary under the Will, (3) the decedent’s surviving spouse, whether or not a beneficiary under the Will, (4) other heirs, and (5) one or more creditors of the decedent’s estate.
What are the duties of a Personal Representative?
A Personal Representative is obligated to act in the best interests of the heirs and to promptly administer the decedent’s estate. The Personal Representative’s many duties include:
- Take possession of, manage, and preserve the decedent’s property
- Notify heirs of the probate proceeding
- Prepare an inventory of the decedent’s property and its value
- Notify the decedent’s creditors of their right to file claims for payment
- Pay valid creditors’ claims and taxes (both income tax and estate tax, if applicable)
- Sell estate assets, if necessary, for cash to pay debts and taxes
- Distribute the decedent’s remaining property to the designated beneficiaries
What rights do heirs and beneficiaries have?
They have the right to:
- Require that the decedent’s Will be filed for probate
- Contest the validity of the Will
- Object to the appointment of certain persons as Personal Representative
- File a demand that they receive copies of all court filings and orders concerning the estate
- Receive an initial inventory and a final accounting of the decedent’s property (and income/expenses of the estate)
- Request that the Personal Representative be supervised by the court or be removed for improper conduct
Also, a surviving spouse who has been either disinherited or who receives a small inheritance under the Will may elect to claim a statutory share (approximately one-third) of the decedent’s estate. The law also provides for allowances and exemptions which may benefit the surviving spouse and minor children in certain situations.
What rights do creditors have in probate?
A person’s death does not necessarily mean their debts go unpaid. A decedent’s creditors generally have the right to be paid, notwithstanding the decedent’s death. The Utah Uniform Probate Code establishes a procedure for identifying and paying the decedent’s creditors.
The decedent’s known creditors are entitled to receive actual notice of the probate filing. All other creditors are notified by the Personal Representative publishing a “Notice To Creditors” in a local newspaper. The decedent’s creditors then have three months in which to file a claim against the estate. The Personal Representative then decides which claims are valid and either pays them, and denies the claim. Creditors with denied claims can contest the Personal Representative’s decision by filing a petition with the probate court.