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Probate Process

When a person dies after preparing a Will it may be necessary to probate or prove the Will.  You should, of course, talk to a probate lawyer about the process. The Will is the operative instrument that provides for the transfer of the decedent’s assets that do not automatically pass to another by means such as the operation of law, i.e. joint ownership.  Nassau estate lawyers, as well as estate attorneys throughout the state, often see situations where a person dies and all assets are payable to named beneficiaries listed on a retirement account or a life insurance policy.  Similarly, assets may be held jointly with others.  In these cases it is not necessary to probate a decedent’s Will since all assets can be collected without Court authorization.  However, it may still be necessary to pay estate taxes.  A Utah estates and probate lawyer should be consulted to help with these situations. A proceeding in the Utah Surrogate’s Court called a probate proceeding must be commenced and completed in which the Court needs to be satisfied that the paper filed as the Last Will is authentic according to the applicable statutes and rules. Probate estates require a lot of attention.

Probate Process

Probate estate proceedings typically require detailed information regarding the decedent’s family and assets.  The proceeding may involve issues dealing with proof of kinship, capacity of the decedent, Will contests, undue influence, spousal rights of election and the proper signing of the Will.  At the conclusion of a successful probate proceeding Letters Testamentary are issued by the Court to the estate Executor who is then authorized to administer the decedent’s estate.

Since Letters Testamentary authorize an executor to act on behalf of an estate this document is essential to estate settlement.  In order to liquidate and collect a decedent’s assets such as a bank account or brokerage account, a current court certified copy of this paper must be presented along with other necessary forms.  An estates and probate lawyer in Utah can help make sure that the paperwork is in order. The executor usually opens an estate bank account and the bank requires that this paper be filed showing the executor’s authority to act and to open the account.

Typically, the Letters Testamentary that are given by the Court do not have any restrictions. The executor can then exercise all of the fiduciary powers that are allowed under the estate laws and rules.  Sometimes the letters may contain a restriction.  For example, the executor may be limited in collecting or selling an asset.  In these cases the executor would need to make a further application to the Court to expand his powers if needed.  Also, the Court may require that a fiduciary file a surety bond before letters are given.  In most Wills there is a provision which directs that the Executor does not need to file a bond.  However, the Court has the discretion to require a bond if needed.

Estate Administration

As a Utah estate administration lawyer, I understand that settling an estate can be anything but simple. My Estate Administration Services are designed to ensure the efficient processing of an estate with special attention paid to working closely with clients.

Estate settlement is comprised of different aspects.  In its simplest form, there are three (3) basic functions to be performed by a fiduciary such as an Executor and Administrator.  These functions are: (i) collecting or marshaling estate assets, (ii) paying debts, expenses and taxes; and (iii) making a distribution of the net estate to the proper beneficiaries.  While these functions may appear rather routine, each can be quite difficult.  For example, closing a decedent’s bank account and depositing the funds into an Estate Bank Account may not be complicated.  However, problems may arise where the decedent’s account was improperly closed prior to death by someone who had access to the account with a Power of Attorney. It is the duty of the Executor or Administrator to attempt to obtain these funds from the wrongdoer for the benefit of the decedent’s estate.  The Surrogate’s Court Procedure Act contains provisions allowing for Turn Over Proceedings that can be used by a fiduciary to obtain assets that rightfully belong to a decedent.

Another situation that may present complications may involve a debt that someone claims the decedent owes but the claim is not verifiable.  The estate fiduciary would need to oppose the claim to protect the estate’s interests.  This could result in Estate Litigation.  An estate administration lawyer in Utah can help you try to avoid this outcome.

Making distributions of estate assets to beneficiaries may be complicated when the beneficiaries do not agree as to the amounts they are to receive.  Beneficiaries may dispute the actions taken by the estate fiduciary and claim that the fiduciary did not perform his duties in a proper manner.  Such claims or objections are typically presented in an Estate Accounting Proceeding in which the fiduciary will present a full financial accounting of all transactions that took place during the course of the Estate Administration.  The beneficiaries will have a right to review all of the transactions as well as all of the bank statements and other papers used to prepare the Accounting.  The services of a qualified Estate Fiduciary Accountant and Utah Estate Lawyer are helpful to all of the parties in these Accounting Proceedings which take place in the Utah Surrogate’s Courts.

Another issue that may arise in an accounting proceeding concerns determining the decedent’s next of kin.  The Court may require that a Kinship Hearing be held.  This is typically the procedure needed in cousin cases or where the decedent’s closest distributees appear to be cousins or more distant relatives.

Free Consultation with a Probate Lawyer

If you are here, you probably have a probate case you need help with, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

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