When a person dies, their assets are distributed in the probate process. Probate is a general term for the entire process of administration of estates of deceased persons, including those without wills, with court supervision. If a person dies with a will, a petition to probate the will is filed with the probate court in the county where the deceased resided at the time of death, asking for letters testamentary to be issued, giving the executor authority to handle the estate affairs. If a person dies with a valid will, an executor is named to handle the distribution of the estate. If the person dies without a valid will, the court appoints an administrator to distribute the decedent’s assets according to the state’s laws of intestacy. The court will issue letters of administration, also called letters testamentary, to the administrator, giving the authority to handle the affairs of the deceased. An heirship affidavit may also be used to conduct estate affairs when a small estate is involved. In cases where the decedent didn’t own property valued at more than a certain amount, which varies by state, the estate may go through a small estate administration process, rather than the formal probate process.
Duties of an Executor or Personal Representative
The executor’s obligations are generally to:
• Safeguard the property and assets of the estate;
• Inventory (or make a list of) the property;
• Submit accounts or inventories to the court as required (these could be waived);
• Pay the debts and expenses of the deceased (such as funeral and burial expenses, medical expenses, and credit card bills);
• Pay any federal or state death taxes, if any; and
• Distribute the estate to those named in the will or, if no will exists, to your heirs as designated by statute.
How Can Probate Be Avoided?
All property of a decedent may not be subject to the probate process. Some assets, such as insurance policies or cd’s may name a beneficiary or pass automatically to a surviving joint owner outside the probate estate of the will. Assets held in trust, or in an account or policy with an insurer or financial institution with a named beneficiary, typically pass outside the probate process. Such assets go to the named beneficiary outside the probate process. If it is a survivorship account, or transfer on death account, it passes outside the probate process. Property held in trust is distributed according to the terms of the trust. It is possible to write a “pourover” clause in a will, so that property “pours over” into the trust, which is exempted from probate. The involvement of the court to transfer such property is not required. A bank account or motor vehicle title may also specify a death beneficiary and thus be exempt from the probate process.
Claiming Property with a Simple (Small Estate) Affidavit
Utah has a procedure that allows inheritors to skip probate altogether when the value of all the assets left behind is less than a certain amount. All an inheritor has to do is prepare a short document, stating that he or she is entitled to a certain asset. This document, signed under oath, is called an affidavit. When the person or institution holding the property — for example, a bank where the deceased person had an account gets the affidavit and a copy of the death certificate, it releases the asset. The out-of-court affidavit procedure is available in Utah if the value of the entire estate subject to probate, less liens and encumbrances, is $100,000 or less. An affidavit may also be used to transfer up to four boats, motor vehicles, trailers or semi-trailers if value of estate subject to probate, excluding the value of the vehicles, is $100,000 or less. There is a 30-day waiting period.
Simplified Probate Procedures
Utah has a simplified probate process for small estates. To use it, an executor files a written request with the local probate court asking to use the simplified procedure. The court may authorize the executor to distribute the assets without having to jump through the hoops of regular probate. You can use the simplified small estate process in Utah if the value of the entire estate, less liens and encumbrances, does not exceed the homestead allowance, exempt property, and family allowance, costs of administration, reasonable funeral expenses, and reasonable medical expenses of the last illness. The executor files a sworn statement that says the estate assets are less than the value described above, describes the estate assets, declares the executor has distributed assets to the inheritors, and sent the inheritors and known creditors a closing statement and provided them with a closing statement.
Probate Litigation
• Personal representatives: Estate executors may be sued for allegedly improper notification, obfuscation or misuse of estate funds, failing to properly preserve assets during probate, failing to observe the testator’s wishes or otherwise failing to comply with state probate law.
• Beneficiaries: Beneficiaries may contest the will’s validity, their share of the estate, the estate’s administration or the inclusion of other beneficiaries. Challenging a will can be an all-or-nothing process, however: it is not uncommon or a will to stipulate that beneficiaries who contest and lose their argument forego their right to an inheritance.
• Creditors: As in personal bankruptcies, Fillmore Spencer LLC represents the rights of creditors to claim what is owed them from an estate. A creditor has three months from the executor’s first publication of the Announcement of Appointment and Notice to Creditors to make a claim. If the executor disallows their claim, the creditor may appeal by filing a petition with the probate court.
• Trustee: In the case of revocable trusts and testamentary trusts, where trust assets are subject to probate or estate taxation, trustees may be involved in probate litigation. As with non-probate trustees, Fillmore Spencer LLC handles litigation alleging failure to observe the trust’s mission and the intentions of the trust’s grantor, trust mismanagement and other breaches of fiduciary responsibility.
Avoiding probate and estate taxes
There are several ways property can avoid probate, including:
• Assets owned as joint tenants with rights of survivorship: All property left to a surviving spouse avoids probate and federal estate tax. This includes assets such as a bank account or a home or other real estate that are owned as joint tenants with rights of survivorship.
• Pay-on-death bank accounts or transfer-on-death stock brokerage accounts: The proceeds from these accounts go to the beneficiary you name probate free, as long as that doesn’t conflict with other components of your estate plan.
• Insurance proceeds, including life insurance and accidental death benefits: These proceeds bypass probate but will be subject to estate taxation unless the insurance policy is held by an irrevocable trust.
• Property held by a trustee of a living trust: If the living trust is revocable, its assets may bypass probate and go directly to beneficiaries, but those assets will be subject to estate taxation. If the living trust is irrevocable, then the assets are not part of the estate and may bypass not only probate but also estate taxation.
• Property held by a charitable, special-needs or other irrevocable trust: As with the irrevocable living trust, property that belongs to an irrevocable charitable or special-needs trust is free from probate and estate taxation.
• Death benefits of annuities, pension plans and retirement accounts: Money inherited from company pensions and 401(k)s, and even individual retirement accounts (IRAs), is not subject to probate, but is subject to estate tax consideration. Because the IRA has been funded with pre-tax dollars, IRA beneficiaries are also liable for income taxes due when the funds are withdrawn.
What are some of the most common forms used for Probate?
The most popular forms or packages for probate are the state specific probate packages, Disclaimer of Right to Inherit or Inheritance – All Property from Estate or Trust, Affidavit of Domicile, Sample Letter for Initiate Probate Proceedings regarding Estate – Renunciation of Executorship, and Sample Letter for Initial Probate Proceedings – Request to Execute Documents.
Some probate legal forms include:
• Affidavit of Subscribing Witnesses for Probate of Will/Codicil to Will
• Affidavit for Probate of Will Witness Not Available
• Affidavit for Probate of Holographic Will/Holographic Codicil
• Application for Probate and Petition for Summary Administration
• Certificate of Probate
• Probate Cover Sheet
• Demand for Notice of Proceedings for Probate of Will or Appointment of Personal Representative
• Application for Informal Probate of Will and Appointment of Personal Representative
• Statement of Informal Probate of Will and Informal Appointment of Personal Representative
• Summons
• Petition for Appointment of Probate Conservator
• Order Appointing Probate Conservator
• Petition and Order for Appointment of Guardian Ad Litem Under the Probate Code
• Letter – Complaint to Probate Will and Appoint Executrix and Issuance of Letters Testamentary
• Letter – Instructions to Execute Complaint to Probate Will
• Letter – Withdrawal of Probated Claim
• Letter – Estate Probate Proceedings
• Letter – Initiate Probate Proceedings for Estate (Complaint to Probate Will)
• Letter – Initiate Probate Proceedings for Estate (Request to Execute Waiver and Consent)
• Letter – Initial Probate Proceedings (Request to Execute Documents)
• Letter – Complaint to Probate Will and Appoint Co-Executrixes and Issuance of Letters Testamentary
• Letter – Complaint to Probate Will and Appoint Executrix and Issuance of Letters Testamentary
• Letter – Notification to Creditor to Probate and Register Claim
• Letter – Initiate Probate Proceedings Regarding Estate (Renunciation of Executorship)
• Letter – Payment of Probated Claim
• Letter – Claim Probated
• Probate of Will Administration with the Will Attached
• Probate of Will with-without Sureties
• Notice of Final Report – Independent Administration Probate
• Notice to Interested Persons of Commencement of Probate Proceeding and Hearing on Appointment of an Administrator
• Notice to Interested Persons of Commencement of Probate Proceeding and Hearing on Allowance of a Foreign Will (Testate)
• Notice to Interested Persons of Commencement of Probate Proceeding and Hearing on Allowance of Will (Testate)
• Petition for Probate of Will and Appointment of Personal Representative
• Power of Attorney – Health Care – Living Wills
• Statutory Form of Advance Health Care Directive
• Petition for Probate of Self Proving Will and Waiver
• Creditors Claim in Probate
• Consent by Personal Rep to Extend Claimants Time to Commence Proceedings on Claim in Probate
• Notice of Allowance or Disallowance of Claim in Probate
• Petition for Family Allowance in Probate & Approval by Personal Representative
• Instrument of Distribution from Probate Estate – Per. Rep.
• Petition for Supervised Administration in Probate
• Objection to Probate of Will
• Order of Probate of Will
• Petition and Order for Appointment of Guardian Ad Litem Under the Probate Code
• Order Appointing Guardian Ad Litem – Probate
What Happens During the Probate Process?
Each state has specific laws in place to determine what’s required to probate an estate. These laws are included in the estate’s “probate codes,” as well as laws for “intestate succession,” when someone dies without a will. In cases where there is no will, probate is still required to pay the decedent’s final bills and distribute their estate. The steps involved are generally very similar, regardless of whether a will exists—even though laws governing probate can vary by state.
Authenticating the Last Will and Testament
Most states have laws in place that require anyone who is in possession of the deceased’s will to file it with the probate court as soon as is reasonably possible. An application or petition to open probate of the estate is usually done at the same time. Sometimes it’s necessary to file the death certificate as well, along with the will and the petition. Completing and submitting the petition doesn’t have to be a daunting challenge. Many state courts provide forms for this. If the decedent left a will, the probate judge will confirm it is valid. This may involve a court hearing, and notice of the hearing must be given to all the beneficiaries listed in the will as well as the heirs—those who would inherit by law if no will existed. The hearing gives all concerned an opportunity to object to the will being admitted for probate—maybe because it’s not drafted properly or because someone is in possession of a more recent will. Someone might also object to the appointment of the executor nominated in the will to handle the estate. To determine if the submitted will is the real deal, the court relies on witnesses. Many wills include so-called “self-proving affidavits” in which the decedent and witnesses sign an affidavit at the same time the will is signed and witnessed. Lacking this, however, one or more of the will’s witnesses might be required to sign a sworn statement or testify in court that they watched the decedent sign the will and that the will in question is indeed the one they saw signed.
Probate Lawyer Free Consultation
When you need legal help with a probate in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
