The Truth About Probate in Utah

The following information reflects Utah law. It has been provided for informational purposes only, and is not intended to render legal advice. It is not intended to apply to any specific situation. Legal principles discussed can differ in individual situations. Before applying any of this information to your personal use, you should consult with your lawyer.

DEFINITIONS

Decedent: A deceased person; the person who made the Will.

Domicile: The decedent’s principal place of residence. The decedent’s domicile at death determines the county in which the probate action is filed.

Estate: All property of a decedent subject to probate. In a tax sense, all items of value owned by decedent at death, whether or not subject to probate.

Intestacy: Pattern of asset distribution when there is no Will.

Personal Representative: Modern term for the person named in a decedent’s Will to carry out the instructions in the Will. Historically known as an “executor” (male) or an “executrix” (female).

Probate: The legal process by which a decedent’s Will is validated and transfer of title to decedent’s assets is approved.

Registrar: The official designated to perform certain probate functions of the court. In Utah, the registrar is always a judge. However, the title “Registrar” is used when probate is informal.
Will: A written declaration of an individual’s wishes for the disposition of property after death.

QUESTIONS AND ANSWERS

Q: What is probate?

Probate is a legal process by which a decedent’s Will is validated, a guardian is appointed (if necessary) for the decedent’s minor, unmarried children, the decedent’s debts and taxes are paid, and transfer of title to a decedent’s assets is approved. Probate is usually a simple, inexpensive process. The term “probate” is also used in the larger sense of administering an estate. In this sense, probate means the process by which a “personal representative” is appointed to carry out the instructions in a Will and settle the estate.

Q: When is probate necessary?

In Utah, a probate is necessary when assets (real estate, bank accounts, stocks, bonds, partnership or LLC interests, etc.) are in the decedent’s name alone or when assets are titled in the name of the decedent and another person as co-owners or as tenants in common. Probate is also necessary when a personal representative needs to be appointed (for instance, to sign and file estate tax returns). However, assets held in the following manner are not subject to probate or to the decedent’s Will, except where the decedent’s estate is designated as a beneficiary:

  • Assets held in a trust
  • Assets held in joint tenancy
  • Assets with beneficiary designations (annuities and death benefits from life insurance, the government)
  • IRAs, pension, profit sharing and 401(k) plans
  • Money in “pay-on-death” accounts

Q: What happens during the probate process?

A Utah probate usually includes the following steps:

  • Decedent’s original Will is filed with the probate court along with an application or petition for probate and for appointment of a personal representative.
  • The Will is “accepted for probate.”
  • A personal representative is appointed to administer the estate and to carry out instructions in the Will.
  • All of the decedent’s assets subject to probate are listed and valued as of date of death.
  • Creditors are notified and the debts of the decedent are verified and paid.
  • The remaining assets of the decedent are distributed according to the instructions in the Will.

Q: What determines where a probate is filed?

The county of the decedent’s domicile at death controls where the probate must be filed. The probate is filed with the district court in that county. For a decedent who owns real estate in Utah but who was domiciled outside of Utah at death, the Utah probate is filed with the district court of the county where the property is located.

Q: Must every Will be probated?

To have effect, a Will must be filed for probate within 3 years after the decedent’s death. But Utah law does not mandate that all Wills be probated. The beneficiaries and heirs of a decedent could, without any probate, merely agree how to divide up the decedent’s assets as long as the decedent’s debts and taxes are paid. However, probate is essential if title to assets must be transferred, to give clear title to the recipient.

Q: How long does probate usually take?

Generally, a non-taxable estate can be probated, or settled, in 4 to 9 months. However, probate can take longer where there are family arguments or complications with certain assets. Probate can also be delayed where an estate tax return must be filed and clearance must be obtained from the IRS. Estate size determines if an estate tax return is filed.

Q: Is probate expensive?

Not in Utah. According to a survey conducted by the Wall Street Journal several years ago, Utah has the lowest probate costs of all 50 states. Yet, with any probate, there will be court filing fees as well as the time and expense incurred by the personal representative and the estate lawyer in handling all details of estate administration.

Q: How much do lawyers charge for probate?

In Utah, there is no pre-determined amount or percentage that a lawyer may charge for handling a probate matter. Good probate lawyers will charge only for what they do, based either on a fixed fee or on the time involved and hourly rates.

Q: Is a lawyer required for probate?

Due to the many complications and issues that could arise, probate is usually not a “do-it-yourself” project. Most families find that, to get the job done right and to minimize delays and avoid family misunderstandings, using a lawyer is the preferred way to go (and the cost is well worth it).

Q: What happens if a person dies without a Will?

 
When a person dies without a Will:

  • A decedent’s remaining assets will be distributed under a pattern determined by state law. This is called “intestate succession” or “intestacy”.
  • The law will treat all of the decedent’s assets the same and there will be no special provisions for family businesses, family farms, heirlooms or other special items. If the heirs do not agree among themselves to a specific division of assets, it may be necessary to sell assets to achieve the distribution pattern prescribed by law.
  • The court must choose who will be guardian for minor children and who will be personal representative.
  • Certain techniques for saving estate taxes may not be available.
  • If there are no children of a prior marriage, the surviving spouse takes 100%. If there are children of a prior marriage, the surviving spouse receives the first $50,000 of assets plus ½ of the balance and the children of prior marriages divide the remaining balance in equal shares.

Q: Does a “living Will” need to be filed for probate?

No. A “living Will” is not a Will at all. The term “living Will” deals with medical matters–and it lets others know how you feel about life support. It is usually a power of attorney granted to a loved one to make life support decisions for an ill relative. A “living Will” has nothing to do with disposing of property at death. As such, that document should not be filed with the probate court.

Q: Does the probate court furnish forms to the public?

No. The probate court is not authorized or directed to prepare or furnish forms. Probate forms should be prepared by a lawyer. Also, forms from one state may not work in another state.

Q: What is the difference between formal and informal probate?

Probate may be either formal or informal, or a combination of the two. Further, formal probate may be either supervised (by the Court) or unsupervised. Under formal supervised probate, the personal representative must get court approval of each action to be taken after giving notice to the beneficiaries and heirs and holding a court hearing. Informal probate in Utah allows the personal representative to take all actions to settle the estate without court involvement. Yet, if necessary, the court could be asked to decide certain issues or to settle a dispute.

Q: How is a probate started?

In Utah, probate is started with an “application” (for informal probate) or a “petition” (for formal probate). The application or petition must indicate if the probate is to be formal or informal, must include the names and addresses of all of the family members of the decedent and must include several other essential statements and requests. When dated and signed, the application or petition is filed with the court along with the original Will. After the application or petition is filed and a notice of hearing is sent out to all of the family members (or notice is waived), the court approves the requests in the application or petition, including approval of the Will and the appointment of the personal representative unless someone objects. The personal representative then proceeds to administer and “settle” the estate.

Q: How soon after death must a probate be started?

Within 3 years if there is a Will. If there is no Will, a probate to determine heirs can be started any time after decedent’s death. No probate may be started within 120 hours after the decedent’s death. Yet it is advisable to start the probate as soon as possible after death in order to transfer assets promptly and to avoid losing important records. If probate is not undertaken while interested persons are alive and well, the family could later be faced with an expensive lawsuit to clear title to certain assets.