When a person dies his or her estate may require the probate of a Last Will or the appointment of an Administrator or personal representative. As a probate lawyer, I’ve been known to say “where there is a will, there is probate.” In any event, estate settlement services are required in order to collect the decedent’s assets, pay claims, bills and taxes and make proper distribution of the assets remaining in the estate. The estate fiduciary has a duty and obligation to perform these tasks and may be held personally liable if there is a breach of fiduciary duty. A Utah estate settlement lawyer can advise you on this process.
In the case of the probate of a Will, the first step is to secure the original Will. If the original Will cannot be located and only a copy is available, the probate process becomes more difficult and time consuming. Typically, the person named in the Will as Executor completes a Probate Petition which is filed with the Utah Surrogate’s Court in the county where the decedent lived. The probate petition contains information regarding the Will such as its date and the names of the attesting witnesses. The petition also requires that information be provided as to the names and addresses of the decedent’s next of kin (“distributees”) and the estimated value of the personal and real property comprising the estate.
One very important aspect of Estate Settlement may involve the preparation of an Estate Tax Return. A decedent’s estate may be subject to Federal and Utah State estate taxes. Both the Federal and State tax systems have different exemptions and methods to calculate the amount of tax that may be due. An Estate Tax Return requires that information be reported regarding the decedent’s Gross Estate which includes all of the assets the decedent may have had an interest in at the time of his death.
In order to properly prepare an estate tax return, the estate Executor or Administrator must search, locate and determine the value of the assets, debts, liabilities and expenses that are required to be reported on the tax return. An estate settlement lawyer in Utah typically works with the estate fiduciary to accomplish the preparation and filing of the returns. The Estate Attorney can prepare correspondence, contact banks and brokerage firms and other sources to assist with the search and liquidation of assets. Additionally, an estate bank account can be established where the decedent’s funds can be deposited and from which bills and distributions can be made.
Various deductions may be used to lower the estate tax liability. Such deductions include the Marital Deduction and Charitable Deduction. Estate administration expenses such as attorney’s fees and executor’s commissions can also be taken as deductions as well as funeral and burial costs.
Probate Court and Wills
Probate is the process by which a last will is validated by the court. In Utah, the Surrogate’s Court is responsible for the probate of wills and Administration proceedings where a person dies intestate or without a last will. Probate proceedings involve probate court wills. A Utah probate lawyer can help you understand this process.
Typically, probate proceedings result in the appointment of an Executor and Administration proceedings result in the appointment of an Administrator. The Executor and Administrator are fiduciaries who are responsible for the administration and settlement of a decedent’s estate. This involves the collection of estate assets, the payment of debts, expenses and taxes and the distribution of the estate assets.
In a typical case the following are some of the steps that occur in the probate process:
- 1. Preliminary Investigation– after a person dies it is important to locate or search for the decedent’s Last Will. This document may be found among the individual’s personal papers or it may be locked up in a safe deposit box. In such a situation the Court can be asked to issue an Order allowing a decedent’s apartment to be searched or to have the safe-deposit box opened to search for the Will. Also, steps should be taken to determine the name and location of all of the person’s named as beneficiaries in the Will as well as the decedent’s distributees. It is the responsibility of the individual named as executor to promptly put together all of this material as best as possible so that the probate proceeding can be expedited. Sometimes it may be difficult to determine or locate all of the descendent’s next of kin. It may be necessary to hire a genealogist to determine the family tree or a private investigator to search for an heir whose whereabouts cannot be determined. The process to locate a person’s missing heirs can delay estate settlement.
- Preparing and Filing of Probate Papers– once the preliminary papers are gathered it is helpful to consult with a qualified probate lawyer in Utah who can assist with the completion of the necessary information and documents needed for probating the Will. Additional information regarding the decedent’s assets and debts and business and financial affairs can be found and assessed at this time. A decedent’s business and financial matters can be hard to compile. A good source of information aside from the ordinary records maintained by the decedent is recent tax returns and mail delivery which might contain current account statements. Some information may need additional investigation especially if the decedent held web-based accounts. Probate can be a very complex and often confusing process since the rules contained in the Utah estate laws must be complied with and satisfied before letters testamentary can be issued to an executor. Letters Testamentary authorize the executor to act as the estate representative. These letters are given after the Will is admitted to probate.
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