Utah Probate Code 75-3-309: Informal Appointment Proceedings–Registrar Not Satisfied
If the registrar is not satisfied that a requested informal appointment of a personal representative should be made because of failure to meet the requirements of Sections 75-3-307 and 75-3-308 A declination of informal appointment is not an adjudication and does not preclude appointment in formal proceedings. or for any other reason, he may decline the application.
Duties of an Appointed Personal Representative
Once appointed and qualified the power and duties of a personal representative appointed by either informal proceedings or formal proceedings are virtually the same. Letters of Authority For Personal Representative will be issued by the court or register once the personal representative qualifies by filing an Acceptance of Appointment and a bond if bond is required. Any restrictions imposed must appear conspicuously on the letters of authority. The court may modify or remove the restrictions with or without a hearing. A register may not impose restrictions in the letters of authority. When the personal representative files the statement of acceptance, the personal representative may exclude from the scope of the personal representative’s responsibility, for a period of not to exceed 91 days, real estate or an ownership interest in a business if the personal representative reasonably believes the real estate or business is or may be contaminated. If a personal representative believes that the estate may have a problem with contaminated property, he or she should consult an attorney and follow the advice of the attorney as to how to proceed. The personal representative is under a duty to settle and distribute the estate “as expeditiously and efficiently as is consistent with the best interests of the estate” and “except as otherwise specified or ordered in regard to a supervised personal representative, without adjudication, order or direction of the court.” Essentially, the personal representative engages in unsupervised administration until the estate is completed or until an interested person including a personal representative files a petition in a formal proceeding asking that the court to enter an order to resolve some issue involving the estate. The default method of administration is unsupervised.
Notice of Appointment
The personal representative is required to give notice of appointment and this is accomplished by serving interested persons with Notice of Appointment and Duties of Personal Representative. It additionally requires that the agreement and Notice Regarding Attorney Fees be served upon the same persons. The rule requires the personal representative to make service not later than 14 days after appointment. The notices must be served on the following:
• Decedent’s heirs
• Decedent’s devisees, including, if there has been no formal testacy proceeding and if the personal representative is appointed on the assumption that the decedent died intestate, the devisees in a will mentioned in the application for appointment of a personal representative.
• Trustee of a trust, (this is a trust over which the decedent had a right at his or her death, either alone or with someone else, to revoke the trust and reinvest principal in himself or herself).
If the estate is commenced by an informal proceeding, additionally copies of the Application for Informal Probate and/or Appointment of Personal Representative (Testate/Intestate), a copy of the will, if any, and Testimony of Interested Person and Supplemental Testimony Interested Persons Testate Estate must also be served on the above persons. No time is set for service of these documents. It is suggested that they be served at the same time as the Notice of Appointment and Duties of Personal Representative. If the address or identity of a person to receive notice is unknown, service by publication will be necessary.
Notice to Creditors
The personal representative must publish, in a newspaper in a county in which a resident decedent was domiciled or in which the proceeding as to a nonresident was initiated, a notice to creditors. The notice need only be published once. If the creditor’s address is unknown and cannot be ascertained after diligent inquiry, the notice must include the name of the creditor. Publication of notice to creditors may be accomplished by using Notice to Creditors Decedent’s Estate. It requires that the notice include:
• The name, and, if known, last known address, date of death, and social security number of the decedent.
• The name and address of the personal representative.
• The name and address of the court where proceedings are filed.
• A statement that claims will be forever barred unless presented to the personal representative, or to both the court and the personal representative, within 4 months after publication of the notice.
It requires that the personal representative must also serve notice personally or by mail on each known creditor of the estate and the trustee of a trust of which the decedent is settlor (this is a trust over which the decedent had a right at his or her death, either alone or with someone else, to revoke the trust and reinvest principal in himself or herself). A creditor is known to the personal representative if the personal representative has actual notice of the creditor or the creditor’s existence is reasonably ascertainable based on an investigation of the decedent’s available records for the 2 years immediately preceding death and the decedent’s mail following death. The personal representative must give notice within the 4-month period following publication. However, if the personal representative first learns of the creditor within 28 days of the end of the 4-month period, the personal representative has 28 days from the time the personal representative first knows in which to give notice. Notice to known creditors may be accomplished by using Notice to Known Creditors.
Notice to Surviving Spouse
In the estate of a decedent who was domiciled in this state at the time of death, the personal representative must serve on the surviving spouse, if any, notice of the rights of election under part 2 of article II of the Estates and Protected Individuals Code and the rights to exempt property and allowances under part 4 of article II of the Estates and Protected Individuals Code. The notice must be served within 28 days after the personal representative’s appointment. The notice may be accomplished by serving the surviving spouse with Notice to Spouse of Rights of Election and Election and Allowances, Proof of Service, and Election. Spousal and minor rights such as allowance will be explained more fully in subsequent notes. No notice need be given the surviving spouse pursuant if:
• The right of election is made before the notice is given.
• The spouse is the personal representative or one of the personal representatives.
• There is a waiver of rights and allowances
Inventory
The personal representative is responsible for the preparation of the inventory and service on all presumptive distributees and interested persons who request a copy within 91 days after the personal representative’s appointment. The property must be listed with reasonable detail along with its fair market value as of the date of death and the type and amount of any lien, mortgage or security interest. The personal representative may employ qualified and disinterested appraisers. The name and address of each appraiser and the item the appraiser valued must be indicated on the inventory. This may be accomplished by using the form entitled Inventory. There is no requirement that the personal representative file the inventory with the court unless in supervised administration. However, the personal representative must submit to the court information sufficient to compute the inventory fee within 91 days of appointment. The inventory fee must be paid before closing the estate or within one year after appointment, whichever is earlier. More information about the inventory is contained in a subsequent note.
Change of Address
The personal representative must keep the court and all interested persons informed in writing within 7 days of any change in the personal representative’s address.
Estate (or Inheritance) Tax Information
The personal representative is required to submit to the court proof that no estate (or inheritance) taxes are due or that the estate (or inheritance) taxes have been paid. More information about taxes is contained in a subsequent note.
Notice of Continued Administration
If the personal representative is unable to complete the administration of the estate within one year of the personal representative’s original appointment, the personal representative must file with the court and all interested persons a notice that the estate remains under administration, specifying the reason for the continuation of administration. This may be accomplished by using Notice of Continued Administration. The personal representative must give this notice within 28 days of the first anniversary of his or her appointment and all subsequent anniversaries during which the administration remains uncompleted.
Accounts under Supervised Administration
A personal representative under supervised administration is required to file with the court once a year, either on the anniversary date of the date his or her letters of authority were issued or on another date the personal representative chooses (personal representative must notify the court of this date) or more often if the court directs, a complete itemized accounting of his or her administration of the estate. The itemized accounting must show in detail all income and disbursements and the remaining property, together with the form of the property. This may be accomplished by using Account of Fiduciary. Subsequent annual and final accountings must be filed within 56 days following the close of the accounting period. When the estate is ready for closing, the personal representative is also required to file a final accounting with a description of property remaining in the estate. All accounts must be served on the required persons at the same time they are filed with the court, along with proof of service. The personal representative will, unless supervised administration has been granted, proceed to closing in an unsupervised manner.
Powers of Personal Representative
The personal representative is under a duty to settle and distribute the estate “as expeditiously and efficiently as is consistent with the best interests of the estate” and “except as otherwise specified or ordered in regard to a supervised personal representative, without adjudication, order or direction of the court.” Essentially, the personal representative engages in unsupervised administration until the estate is completed or until an interested person including a personal representative files a petition in a formal proceeding asking that the court enter an order to resolve some issue involving the estate. The Estates and Protected Individuals Code provides the personal representative with broad powers with which to accomplish settlement of estates without court involvement. Retain property owned by the decedent pending distribution or liquidation including property in which the personal representative is personally interested or that is otherwise improper for trust investment. Receive property from a fiduciary or another source. Perform, compromise, or refuse performance of a contract of the decedent that continues as an estate obligation, as the personal representative determines under the circumstances. If the contract is for a conveyance of land and requires the giving of warranties, the personal representative shall include in the deed or other instrument of conveyance the required warranties. The warranties are binding on the estate as though the decedent made them but do not bind the personal representative except in a fiduciary capacity. In performing an enforceable contract by the decedent to convey or lease land, the personal representative, among other possible courses of action, may do any of the following:
• Execute and deliver a deed of conveyance for cash payment of the amount remaining due or for the purchaser’s note for the amount remaining due secured by a mortgage on the land.
• Deliver a deed in escrow with directions that the proceeds, when paid in accordance with the escrow agreement, be paid to the decedent’s successors, as designated in the escrow agreement.
• If, in the judgment of the personal representative, the decedent would have wanted the pledge satisfied under the circumstances, satisfy a written charitable pledge of the decedent irrespective of whether the pledge constitutes a binding obligation of the decedent or is properly presented as a claim.
• If funds are not needed to meet a debt or expenses currently payable and are not immediately distributable, deposit or invest liquid assets of the estate, including funds received from the sale of other property in accordance with the Michigan prudent investor rule.
• Acquire or dispose of property, including land in this or another state, for cash or on credit, at public or private sale; and manage, develop, improve, exchange, partition, change the character of, or abandon estate property.
• Make an ordinary or extraordinary repair or alteration in a building or other structure, demolish an improvement, or raze an existing or erect a new party wall or building.
• Subdivide, develop, or dedicate land to public use, make or obtain the vacation of a plat or adjust a boundary, adjust a difference in valuation on exchange or partition by giving or receiving consideration, or dedicate an easement to public use without consideration.
• Enter into a lease as lessor or lessee for any purpose, with or without an option to purchase or renew, for a term within or extending beyond the period of administration.
• Enter into a lease or arrangement for exploration and removal of minerals or another natural resource, or enter into a pooling or unitization agreement.
• Abandon property when, in the opinion of the personal representative, it is valueless, or is so encumbered or in such a condition as to be of no benefit to the estate.
• Vote stocks or another security in person or by general or limited proxy.
• Pay a call, assessment, or another amount chargeable or accruing against or on account of a security, unless barred by a provision relating to claims.
• Hold a security in the name of a nominee or in other form without disclosure of the estate’s interest. However, the personal representative is liable for an act of the nominee in connection with the security so held.
• Insure the estate property against damage, loss, and liability and insure the personal representative against liability as to third persons.
• Borrow money with or without security to be repaid from the estate property or otherwise, and advance money for the estate’s protection.
• Effect a fair and reasonable compromise with a debtor or obligor, or extend, renew, or in any manner modify the terms of an obligation owing to the estate. If the personal representative holds a mortgage, pledge, or other lien upon another person’s property, the personal representative may, in lieu of foreclosure, accept a conveyance or transfer of encumbered property from the property’s owner in satisfaction of the indebtedness secured by lien.
• Pay a tax, an assessment, the personal representative’s compensation, or another expense incident to the estate’s administration.
• Sell or exercise a stock subscription or conversion right.
• Consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise.
• Allocate items of income or expense to either estate income or principal, as permitted or provided by law.
• Employ, and pay reasonable compensation for reasonably necessary services performed by, a person, including, but not limited to, an auditor, investment advisor, or agent, even if the person is associated with the personal representative, to advise or assist the personal representative in the performance of administrative duties; act on such a person’s recommendations without independent investigation; and instead of acting personally, employ one or more agents to perform an act of administration, whether or not discretionary.
• Employ an attorney to perform necessary legal services or to advise or assist the personal representative in the performance of the personal representative’s administrative duties. An attorney employed under this subdivision shall receive reasonable compensation for that employment.
• Prosecute or defend a claim or proceeding in any jurisdiction for the protection of the estate and of the personal representative in the performance of the personal representative’s duties.
• Sell, mortgage, or lease estate property or an interest in estate property for cash, credit, or part cash and part credit, and with or without security for unpaid balances.
Probate Lawyer
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West Jordan, Utah
84088 United States
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