Most probate proceedings in Utah are informal. You can use it when the heirs and beneficiaries are getting along, there are no creditor problems to resolve and you don’t expect any trouble. The process begins when you file an application with the probate court to serve as the “personal representative” of the estate. (This is what most people think of as the “executor”). Once your application is approved, you have legal authority to act for the estate. Usually you’ll get what’s called “Letters Testamentary” from the court.
Once you get the letters, you need to do these things:
• Send out formal notice to heirs, beneficiaries, and creditors that you know of
• Publish a notice in a local newspaper to alert other creditors
• Provide proof that you’ve mailed notices and published the notice
• Prepare an inventory and appraisal of the estate’s assets
• Keep all the property safe
• Distribute the property (when the estate closes)
Once the property’s been distributed, you close an informal proceeding by filing a “final accounting” with the court and a “closing statement” that says you’ve paid all the debts and taxes, distributed the property, and filed the accounting.
Most people think of probate as a long, drawn-out process. This isn’t always the case. A probate lawyer will tell you that it depends on the type of probate. Under Utah law, an estate can be probated formally or informally. The latter provides the best possibility for a relatively quick close. However, there are still a few steps before a closing statement can be filed. In most cases, informal probation is only used when family members are in agreement. It usually involves a family that does not dispute bequests, but wants to appoint a member to carry out probate. The selected member, or personal representative, will be responsible for filing the application for probate. In intestate situations, this person will file an application to act as the personal representative. Once probate is active, the representative can administer the estate. Therefore, the personal representative will need to disburse the property according to the probate checklist. He or she will also have to settle the decedent’s debts with creditors. Once this is done, the administration of the estate is completed. The earliest informal probate can close is one year after the closing statement is filed. This time period is required to allow for any potential disputes. Technically, probate doesn’t close until the personal representative is released from duty. This happens after a year without any challenges to the estate. The estate must also be free from any appeals.
File an Informal Probate for an Estate
Informal probate is an administrative probate proceeding and is processed by a Utah Uniform Probate Code (UUPC) Magistrate instead of a judge. There are different forms you’ll need to file depending on whether or not the decedent (the person who has died) died with a will. You’ll also need to give notice of the probate proceeding to the people entitled to notice by:
• A written notice at least 7 days before filing an informal petition with the court
• A publication notice within 30 days after an informal petition is allowed
If the decedent died with a will, you’ll need to file:
• Petition for Informal Probate of Will and/or Appointment of Personal Representative
• Surviving Spouse, Children, Heirs at Law
• Devisees
• The original will
• A certified copy of the death certificate
• Notice of Informal Probate and Return of Service
• Order for Informal Probate of Will and/or Appointment of Personal Representative
• Informal Probate Publication Notice
You may also need to file:
• Bond if you want to appoint a personal representative
• Military Affidavit if not all interested parties (anyone having a property right in or claim against an estate) agree to the petition
• An authenticated copy of the will and appointment if it’s for an ancillary (additional) probate proceeding
• Assent and Waiver of Notice/Renunciation/Nomination/Waiver of Sureties
• Cause of Death Affidavit, Affidavit of Domicile or no conflict of a conservator who’s also an heir or devisee (an affidavit stating a conservator of an incapacitated person or minor with an interest in the estate has no conflict of interest)
• Proof of guardianship or conservatorship
If the decedent died without a will
You’ll need to file:
• Petition for Informal Probate of Will and/or Appointment of Personal Representative
• Surviving Spouse, Children, Heirs at Law
• A certified copy of the death certificate
• Notice of Informal Probate and Return of Service
• Order for Informal Probate of Will and/or Appointment of Personal Representative
• Bond
• Informal Probate Publication Notice
You may also need to file:
• Military Affidavit if not all interested parties (anyone having a property right in or claim against an estate) agree to the petition
• Assent and Waiver of Notice/Renunciation/Nomination/Waiver of Sureties
• Cause of Death Affidavit, Affidavit of Domicile or no conflict of a conservator who’s also an heir or devisee (an affidavit stating a conservator of an incapacitated person or minor with an interest in the estate has no conflict of interest)
• Proof of guardianship or conservatorship
Probate Forms
Affidavit for Collection of Personal Property
• Affidavit for Collection of Personal Property of Decedent
• Acceptance of Duties by Personal Representative and Letters Testamentary by Court
• Request to Start Informal Probate and Appoint a Personal Representative When There Is a Will
• Statement Starting Informal Probate and Appointing a Personal Representative When There is a Will
When the person who died did NOT make a Will:
• Acceptance of Duties by Personal Representative and Letters of Administration by Court
• Request to Start Informal Probate and Appoint a Personal Representative When There Is No Will
• Statement Starting Informal Probate and Appointing a Personal Representative When There is No Will
Forms for all informal probate cases
• Affidavit of Publication
• Claim Against Estate
• Demand Notice
• Final Accounting and Proposed Distribution
• Information to Heirs and Devisees
• Inventory of Property
• Nomination for Appointment of Personal Representative with Lower Priority
• Notice of Allowance or Disallowance of Claim
• Notice to Creditors
• Receipt and Release
• Request to Be Appointed as a Co-Personal Representative
• Waiver of Bond Requirement
• Sworn Statement of Personal Representative to Close Informal Estate
Small Estate
• Sworn Statement of Personal Representative Closing Small Estate
The first step in the informal probate proceedings process is to determine who will be the personal representative of the decedent’s estate. If you want to be the personal representative, complete the Application for Informal Probate and/ or Appointment of Personal Representative form. File the form, the decedent’s will (if there is one), and a certified copy of the death certificate with the county probate court where the decedent lived. If the probate register approves the application, he or she sign the Probate Register’s Statement. This statement admits the will and appoints the personal representative. The personal representative must sign and file the Acceptance of Appointment form before he or she has authority to act.
Several other forms will be needed throughout the process, including:
• Testimony to Identify Heirs
• Supplemental Testimony to Identify Non heir Devisees if there is a will that names people who are not the decedent’s heirs
• Letters of Authority for Personal Representative
Appointing a Personal Representative
The order from highest to lowest priority is:
• The person named as personal representative in decedent’s will
• The decedent’s surviving spouse if the spouse is a devisee
• Other devisees of the decedent
• The decedent’s surviving spouse (not a devisee)
• Other heirs of the decedent (not devisees)
• A creditor’s nominee (the creditor must wait 42 days after the decedent’s death to nominate someone and the court must find the nominee suitable)
• The state or county public administrator (this person must wait 42 days after the decedent’s death, and there must be no known heir or U.S. resident beneficiary entitled to share of the decedent’s estate)
Someone named as the personal representative in a valid will has the highest priority. This person cannot transfer his or her priority by nominating someone else. However, everyone else can transfer their priority by nominating someone else to be the personal representative. A judge can find the person with the highest priority to be unsuitable and appoint someone else. Just because someone has a higher priority than you do to be the personal representative does not mean that you cannot be appointed as the personal representative. It only means that if that person challenges you to be the personal representative, he or she will likely be appointed. You must serve the notice on anyone who has a greater or equal right to appoint themselves as the personal representative of the estate. You can either personally serve the notice or mail it. After you complete service, you must attach Proof of Service to your application. If you choose to mail the notice, the probate court must wait 14 days after you mail the notice before it can act on your application. If you choose to personally serve the notice, the court must wait seven days after you complete service before it can act on your application.
Responsibilities of the Personal Representative
The personal representative must:
• Prepare an Inventory,
• Pay the Inventory fee,
• Give notice to known creditors and publish a notice to unknown creditors,
• Pay the taxes and file the final tax return for the decedent,
• Pay the bills of the estate and claims against the estate,
• Distribute the remaining assets as appropriate, and
• File a Notice of Continuing Administration if the estate is open for more than a year.
When a decedent’s estate is administered in probate court, creditors must be given notice so they can try to collect money the decedent owed them. Known creditors are sent notices. Different types of creditors have different priorities. Those with higher priorities get paid first.
The Personal Representative must serve on all interested parties:
• The Notice of Appointment and Duties of Personal Representative,
• Notice Regarding Attorneys Fees,
• Right to Spousal Election,
• Inventory,
• Representative notice to the Friend of the Court, which is filed with the Friend of the Court,
• Account of Fiduciary, and
• The Sworn Statement to Close.
An interested party is any person who has an interest in, property right in, or claim against the estate. It can include the decedents:
• Heir
• Devisee
• Creditor
• Beneficiary
Closing the Estate
Before an estate can be closed, the following must happen:
• The estate must have been open for at least five months
• Required notice to creditors was published at least four months prior to closing
• The inventory fee was paid
• Any estate/inheritance taxes were paid (proof of payment required)
The personal representative (or if none was appointed, an interested party) may close the estate either formally or informally. The steps and documents used to close an estate differ depending on whether the administration was supervised or unsupervised. To learn more, read the article Supervised and Unsupervised Probate Administration.
Social Security Benefits
If the decedent was getting Social Security benefits, the Social Security Administration (SSA) should be notified of the death as soon as possible. The funeral home director may file a form to tell the SSA about the death, or you may need to do this yourself. If the decedent was paid benefits for the month after his or her death, the benefits will have to be paid back to the SSA. If the benefits are direct deposited and the account is still open, the SSA may withdraw the funds.
Income Taxes
When a person dies, his or her estate becomes a new taxpayer for income tax purposes, separate from the person. The estate must get an Employer Identification Number (EIN) from the IRS. You can learn more about how to get an EIN on the IRS’s website. The number that is assigned is used on any accounts in the name of the estate such as bank, credit union, and brokerage accounts.
Probate Lawyer
When you need a probate lawyer 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
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