Probate refers to the process whereby certain of decedent’s debts may be settled and legal title to the decedent’s property held in the decedent’s name alone and not otherwise distributed by law is transferred to heirs and beneficiaries. If a decedent had a will, and the decedent had property subject to probate, the probate process begins when the executor, who is nominated by the decedent in the last will, presents the will for probate in a courthouse in the county where the decedent lived, or owned property. If there is no will, someone must ask the court to appoint him or her as administrator of the decedent’s estate. Often, this is the spouse or an adult child of the decedent. Once appointed by the court, the executor or administrator becomes the legal representative of the estate.
How Probate Begins
You start by asking the probate court to name you executor or personal representative, whichever term is used in your state. If there’s no will, in some states you’ll ask to be the “administrator.” To make this request, you will probably need to file an application, death certificate, and the original will (if you haven’t deposited it with the court already) with the local probate court in the county where the deceased person was living at the time of death. The document in which you make your request will probably be called a petition or application. It must contain certain information, such as the date of death, names of surviving family members and of beneficiaries named in the will, and so on. Many courts provide fill-in-the-blanks forms; if yours doesn’t, you’ll have to type something up from scratch. (Every probate court has its own rules about the documents it requires.) If the deceased person owned real estate in more than one county in the same state, you can handle it all in one probate. There’s no need to conduct a separate probate proceeding in the other county.
When a property owner dies, his assets must be distributed to the people that are named in the decedent’s will or are the decedent’s heirs under state law. Many of the decedent’s assets go through the “probate process,” which is a court supervised process that includes proving the authenticity of the deceased person’s will, appointing an executor to handle the estate, inventory of the decedent’s property, paying debts and taxes, identifying heirs, and distributing the decedent’s property according to the will or state law if there is no will. Keep reading to learn how to start the probate process.
Find the will
If the decedent has a will, you will need to locate it right away because it says who will inherit the decedent’s property. The will also names an executor. Gather any codicils (amendments to the will) as well.
• Be aware that in some states, the “custodian of the will,” or the person who has the will at the time of the testators death, must take the will to the probate court or the executor named in the will within 30 days of the testator’s death. In states that have this requirement, the custodian can be sued for damages for failing to do this.
• If there is no custodian, search for the will in places such as filing cabinets and desk drawers. If you are unable to find the will after looking in obvious places, look for the will in safe deposit boxes, with the decedent’s lawyer, or at the local probate court.
• If you cannot locate a will, either because the decedent did not have one or because it is lost, precede under state intestacy laws. Intestacy laws provide a way to distribute a decedent’s property without a will, according to a state statutory scheme.
Order copies of the death certificate. As you go through the probate process, you will need a number of certified copies of the death certificate to serve as official evidence of the death. Ask for at least ten copies.
• The mortuary that handles the decedent’s funeral may provide some certified copies of the death certificate. You can also order death certificates from your state’s department of vital records.
• To order death certificates from the department of vital records, you will need to provide a valid government issued photo ID and two of the following documents that includes you name and address: telephone bill, utility bill, or letter from a government agency dated within the last 6 months.
• Be aware that in some states, the only people who can order copies of the death certificate are family members or the executor of the will.
In addition to the will and death certificates, there are several other miscellaneous documents that you may need. Gather these documents before you begin the probate process.
• paperwork related to the decedent’s insurance policies
• bank account information
• property inventory papers
• stocks and bonds
• tax returns for the estate
• tax returns for the decedent’s property
After you have gathered all of the required documents, take some time to organize them. You may want to invest in an accordion style file folder to keep the documents separated and easy to find. Label the tabs to indicate what documents are in each section. If you are missing any of the documents that you will need, you will have to do some searching. Contact the decedent’s accountant, the manger of the decedent’s bank, and any other professionals who may be able to provide you with the documents that you need. Determine if probate is required. Sometimes, it is possible to completely avoid probate or participate in a simplified probate process. Make sure to check your state’s laws for specifics.
• If the estate is valued at less than $100,000, there’s a chance probate is not required.
• No probate may be required if the decedent created mechanisms for passing his or her property outside of probate. Some common assets that do not go through probate include:
• joint tenancy property
• property placed in a living trust
• household goods and other property that goes to immediate family members under state law
• payable-on-death bank accounts
• life insurance proceeds
• retirement accounts
• securities registered in transfer-on-death form
• personal property in “small estates”
Determine if you should use a simple probate procedure. Many states offer an informal probate process that is much easier and faster than formal probate. In most states, this simple probate procedure is also known as “summary administration.” States use a certain dollar amount to determine whether an estate is eligible to be probated through a summary administration.
Some states have other requirements for simple probate, so make sure to check the laws in your state before proceeding. Determine if you should use formal probate. This is the best option for estates that are more complicated or have a value that is too high to qualify for summary administration. You will need to use a formal probate procedure if the decedent’s property exceeds the limits for simple probate in your state, or if there are disputes between beneficiaries, or challenges to the will.
Be aware of probate deadlines in your state. In most states, there is no deadline for starting a probate proceeding, but some states require probate to begin within three or four years. If you plan to use a simple probate procedure, some states require that probate begins within three years after the death. Be aware that the court must appoint an executor or administrator. In most cases, courts will honor a testator’s wishes and appoint an executor that was named in the will. If there is no will, state law determines who has priority to serve as executor. The executor who is named in the will can begin probate, but family members or other named in the will can also begin the probate process.
Petition the court to name an executor. The executor of a will is responsible for distributing assets, maintaining property, and paying bills and taxes during the execution of the will. The executor must also make court appearances as needed. If you are named in the will, or if the will does not name an executor, you may petition the court to name an executor.
In order to be named executor, you will need to file the following documents with the court:
• an application
• a death certificate
• the original will
When someone requests to be appointed as executor, the court will schedule a hearing to give interested parties (parties who could inherit something from the estate) a chance to object to the appointment. Before the hearing, all interested parties must be informed of the date and time.
• Keep in mind that most of the time, the hearing is a formality and no one objects to the executor’s appointment.
• If the executor is approved, the court will issue documents allowing the executor to act on behalf of the estate. These are usually called “Letters of Administration” or “Letters Testamentary” if there is no will.
• After approving the executor, the court will issue an order opening the probate case.
If you are named executor, then you will be responsible for sending out notices of probate to all of the decedent’s creditors and beneficiaries. In most states, a notice should also be published in the local newspaper to alert any other unknown creditors.. The court may require the executor to post bond, which is an insurance policy that protects the estate beneficiaries from any losses to their inheritance caused by the executor.
• If the will states that no bond is required, the court will often waive the requirement.
• If a bond is required, the amount will depend on the size of the estate.
If there is a will, proving that the will is valid is a part of probate. Until the will has been proven to be valid, the executor cannot begin distributing the estate. To prove that the will is valid, you will need the statements of one or more witnesses who signed the will at its execution. In general, probate courts allow the following types of witness statements:
• A sworn statement called a “self-proving affidavit” that was signed by the witness in front of a notary when they witnessed the will
• A sworn statement signed by the witness at the time probate is opened
• A personal statement made by the witness to the court
• As an alternative, the court may accept other evidence of the will’s validity, such as the testimony of someone who is familiar with the testator’s signature.
Review and Sign the Documents Required to Open the Probate Estate
Once the estate lawyer has enough information to draft the court documents required to open the probate estate, the Personal Representative/Executor and, if applicable, the beneficiaries named in the decedent’s Last Will and Testament or heirs at law will be required to review and sign the appropriate documents. While these legal documents will vary from state to state, or even from county to county within the same state, they will generally include the following:
• Petition for Probate Administration
• Oath and Acceptance of Personal Representative/Executor
• Appointment of Resident Agent
• Joiners, Waivers, and Consents
• Petition to Waive Bond
• Order Admitting Will to Probate
• Order Appointing Personal Representative/Executor
• Order Waiving Bond
• Letters of Administration/Letters Testamentary
One of the purposes of probate is to prevent fraud after someone’s death. Imagine everyone stealing the castle after the owner dies. It’s a way to freeze the estate until a judge determines that the Will is valid, that all the relevant people have been notified, that all the property in the estate has been identified and appraised, that the creditors have been paid and that all the taxes have been paid. Once all of that’s been done, the court issues an order distributing the property and the estate is closed.
Probate Attorney in Utah Free Consultation
When you need help with a probate in Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with estate planning. Probate cases. Probate Lawsuits. Wills. Trusts. Estate Mediation. And much more. We want to help you!
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