Probate
What is Probate?
Probate is the legal process of transferring the property of a deceased person to his or her heirs, and is overseen by the Utah State judicial system in the county where the individual lived while they were alive.
Don’t I want to avoid Probate?
Compared to most other states, the probate procedures in Utah are simple and inexpensive, allowing for the orderly, economic, and efficient transfer of property from a deceased person to his or her heirs.
How does a typical Probate work?
When Probate is necessary, the Executor of the estate (also referred to at the Personal Representative), petitions the court to appoint an Administrator to manage the process. The Administrator is responsible for paying outstanding debts, locating the deceased’s heirs, identifying the estate’s assets, notifying potential creditors, and facilitating distribution of assets. The court formally discharges the Administrator at the conclusion of Probate.
How much will a Probate cost?
The costs of Probate vary greatly, and depend upon the size and nature of the estate. Because most Utah State attorney’s fees are charged on an hourly basis, a complete estate plan executed prior to your death may reduce or eliminate the costs of Probate.
How long will a Probate take?
Probate typically requires a minimum of four months to completion, however, specific factors, such as federal taxes, and other issues, may extend the process for a year or longer.
How do I know if I need to start a Probate?
When a person dies, the Executor of the estate listed in the Will hires an attorney and begins Probate. In the absence of a Will, an heir to the estate may also hire an attorney and start the process. An experienced probate attorney from Christensen Young and Associates will help you determine if you need to start a probate and, if so, will prepare all necessary documents. Even if you decline to proceed with Probate, you must still file the original Will with the Court for safekeeping.
What is the difference between an Executor and a Personal Representative?
Personal Representative and Executor are interchangeable terms, though Personal Representative is now the preferred legal terminology used in the preparation of a Will and other documents. Personal Representative also replaces Executrix, the term for a woman Executor. Regardless of the terminology used, this individual is responsible for administering the estate during Probate.
I’m named as the Personal Representative (Executor) in my Uncle’s Will, and he died last week. Now what?
If you are the Personal Representative in a family member’s Will, your first responsibility is to determine whether or not Probate is necessary, and you should contact a qualified attorney to help you make this decision. If you decide to proceed with Probate, your attorney will prepare documents and file them with the court, along with the original Will. Once the court has approved your documents and entered an appropriate Order, you can begin administration of the estate.
Can I start a Probate if there is no Will?
Yes, an estate can be probated with or without a Will.
What do “testate” and “intestate” mean?
To die “testate” means that you had a valid Will at the time of your death. To die “intestate” means you either did not have a Will at the time of your death, or the Will was deemed invalid.
Can I use a Durable Power of Attorney instead of starting a Probate?
No. Powers of Attorney become invalid after the death of the Principal (the person who originally signed the document).
If I have a Community Property Agreement, will my estate need to go through Probate?
Maybe.
Depending on the nature and specific language of your Community Property Agreement, your assets may be able to transfer to your surviving spouse without probate. A qualified estate planning attorney at Christensen Young and Associates can analyze your Community Property Agreement and advise your Executor and spouse whether probate will be necessary.
My relative had a Will, but I think they were not competent when they signed it. What can I do?
If you have concerns about a Will, and you are a family member or other interested party, you may have legal standing to contest the Will within 90 days of the opening of Probate, the legal process used to administer an estate. If you are disputing the deceased individual’s competency, the court will consider factual evidence relating to the testamentary capacity of the deceased. A person has testamentary capacity and is competent to execute a Will if he or she (1) understands that a Will is a document that provides instructions for the distribution of their assets after their death, (2) understands the nature and extent of their personal assets, and (3) knows who qualifies as “natural objects of his/her bounty”. Natural objects of one’s bounty are typically limited to the spouse, children, grandchildren, etc. While an individual is not required to leave their assets to family, it must be obvious that they made a conscious effort to exclude these parties from the Will.
I am the beneficiary of an estate. What should I do if the Personal Representative is taking a long time, or is not communicating with me?
A Personal Representative has a fiduciary duty to act in the best interests of the estate and all listed heirs/beneficiaries. This individual is required to conduct a thorough inventory and appraisal of the estate within three months of beginning Probate, including selling real estate, distributing property, paying legal fees, paying off debts, etc., and is obligated to inform beneficiaries of the actions being taken on behalf of the estate. However, the Personal Representative does have some discretion as to the timing of distribution, and is also legally obligated to execute all other requirements of the estate before distributing assets. This process can be slowed in the event of a down housing market, a long list of creditors, and other issues.
An heir may request in writing a copy of the estate inventory and appraisal, and the Personal Representative must provide it ten days of request. If the Personal Representative is refusing to communicate with an heir, the heir has the right to seek court intervention. A court has the authority to order a Personal Representative to act, and may remove a Personal Representative if he/she fails in exercising his/her duties.
