Probate is the legal process whereby a deceased person's (also called a "decedent") will is presented to the court for validation and the personal representative is appointed and granted permission to act. If decedent dies without a will (also called "intestate"), probate may still be required. The probate court would need to appoint the personal representative. Once appointed, the personal representative can then go about inventorying the decedent's estate, paying debts and taxes and distributing assets. When the estate has been fully administered, the probate closing documents are filed with the probate court, a final distribution is made to the heirs or beneficiaries, and the court discharges the personal representative from further responsibility.
Estates Subject to Probate
Not all estates are subject to probate. Estates that require probate generally include those:
1. with probate assets (E.g., home, other real property, bank accounts, investments, etc); or
2. naming a guardian; or
3. naming a custodian; or
4. transferring certain real estate.
Probate assets are those titled solely in the decedent's name. Conversely, non-probate assets -- including jointly owned property, life insurance proceeds, retirement plans and various other assets -- automatically transfer upon decedent's death. Probate assets, however, pass based on decedent's instructions in a will or under state intestacy statutes.
Any of the decedent's untitled property can be transferred without a probate, but does not protect that property from the claims of creditors. Further, some types of property does not go through probate (i.e. passes outside of probate) because they have a built-in transfer clause that does not involve the need for probate. This would include:
1. Property held by a trustee of a living trust;
2. Joint tenancy property;
3. Payable on death (P.O.D.) bank accounts and transfer on death (T.O.D.) arrangements;
4. Beneficiary designations for insurance proceeds, including life insurance and accidental death benefits;
5. Death benefits of annuities, pension plans, and retirement accounts, including IRAs and 401(k)s.
Probate might also be avoided if the net value of the decedent's property subject to probate does not exceed $100,000. This would require signing a small estate affidavit, which can be used to collect a decedent's Utah property, except real estate.
When Probate is Necessary
If probate in Utah can't be avoided, there are some filing options. These include:
Informal Probate: This is for simple, uncontested estates and usually costs less than a formal probate because no attorney travel or in-court time is required. Sometimes the decedent's relatives must sign written consents to this process.
Formal Probate: This is for estates that has some dispute involved, such as the right of a person seeking appointment as a personal representative. Formal probate requires an in-court hearing, which the attorney (but not the client) is required to attend.
Order determining heirs: This is often needed when real estate or other property located in Utah needs to be sold and more than three years have passed since the decedent's death.
Ancillary probate for out-of-state decedents: This is when the decedent lived out of Utah at the time of death, probate was filed out of state, and the decedent owned Utah real estate or other property that needs to be sold.
Disadvantages & Advantages of Probate
The disadvantages of probate include time, cost and lack of privacy. At a minimum, the probate process will take 4 months due to the statutory prescribed notice period. Beyond that, the duration of the probate will depend on a variety of factors. Probate costs include mandatory filing fees and attorney fees. The extent of attorney fees depends on the situation; for example, does the will establish clear instructions for the Personal Representative, is anyone challenging the will or certain dispositions, were decedent's affairs in order and is it easy to locate decedent's assets and liabilities?
Probate is a matter of public record. All documents filed are accessible by the general public. Therefore, if decedent desires the affairs of his or her estate to remain private, a trust could be used to avoid probate.
Still, sometimes probate is a little better suited to the circumstances. Probate is probably a good idea when family conflict or other challenges are anticipated.
In Utah, probate is not the scary monster it is in other states. Steps can be taken to make the process easier for loved ones. First, be sure you have estate planning documents in place. These serve as an instruction manual for your Personal Representative and heirs. Second, organize all pertinent documentation regarding assets, liabilities, professional service providers, etc. And third, if you anticipate family conflict, consult an attorney and consider sharing your intentions and wishes with potentially disgruntled heirs and beneficiaries.
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