This blog post boils Utah probate down to its most basic points.
When a loved one passes away without estate planning, his or her estate needs to be probated. This means that in order for this person’s estate to be distributed, the heirs or beneficiaries need to go to court. Not all estates need to be probated but the ones that do require some court involvement and certain steps must be taken. The probate process can be lengthy and expensive but it can also be quite useful in helping someone’s estate end up in the right hands.
Probate Vocabulary
In order to better understand how the probate process works, let’s start with some basic vocabulary and key words.
Decedent: this is the deceased person who passed away leaving behind an estate
Estate: all property, assets and personal belongings owned by the decedent at the time of his or her death including contractual obligations and debt
Heirs/Beneficiaries/Devisees: these are the people who will receive a portion of the decedent’s estate according to Utah intestacy laws or the decedent’s will
Testate/Intestate: when someone dies leaving a will, it is said that this person died testate; when someone dies without a will, it is said that this person died intestate
Executor/Administrator/Personal Representative: the executor is the person in charge of the probate process when someone dies testate (with a will); the administrator is the person in charge of the probate process when the decedent died intestate (when there is no will); the personal representative is the name given to the executor or the administrator who represents the estate
Letters Testamentary/Letters of Administration: this is the document issued by the probate court appointing the personal representative in a probate case involving a will (Letters Testamentary) or without a will (Letters of Administration)
What’s Next?
Now that you are better acquainted with probate terminology, let’s get into the nitty gritty of what probate actually is.
Probate is a court procedure through which estates that have not been protected by a Trust must pass.
When a loved one passes away without an estate plan, his or her estate needs to be probated, meaning that in order for the estate to be distributed, the Heirs or Beneficiaries need to go to court. By and large, all estates that have not been provided for with careful estate planning (usually in the form of a Trust) will require some court involvement. The probate process can be lengthy and expensive, which is why we have said that it’s beneficial to avoid it.
Probate processes can either be formal or informal.
The first step in the probate process is to file an application or petition for informal or formal probate with a Utah probate court. Informal probate proceedings occur when the Heirs of an estate agree on who should be appointed as the estate’s Personal Representative and how the estate should be distributed. A copy of the Decedent’s (or person who died) death certificate and Will (when there is one) must be entered with the petition for the court to consider. Unless all interested parties sign a waiver of notice, the court will schedule a hearing before appointing the Personal Representative.
Formal probate is required to solve disputes over estates. This generally occurs when the interested parties that have not come to an agreement about who should serve as the estate’s Personal Representative or how the estate should be distributed. This is where probate process can get lengthy and expensive.
If there are no objections, or once all parties have been notified and heard, the court will appoint someone to serve as the Personal Representative of the estate and issue letters testamentary or letters of administration. At this point, the Personal Representative has legal authority to administer the estate which involves paying taxes, paying off the decedent’s debts, and distributing the estate to the decedent’s Heirs, Beneficiaries, or Devisees.
How long does probate take?
In our experience, simple probate cases take around four to five months. The length of a probate procedure depends on several factors including objections raised during the process by interested parties and the nature of the estate’s assets. In case of objections, some Utah courts require mediation which can expedite the final outcome.
Keep in mind that an estate can be probated at any time after a person dies. However, under Utah law, a Will can only be probated up to three years after the date of death. So, if a Personal Representative fails to probate a Will within the three-year time limit, they can request a Determination of Heirs to distribute the Decedent’s estate properly, but the specifications laid out in the Will won’t be honored. In this situation, the estate will be administered according to statutory requirements, and not based on the Decedent’s last wishes. That is why Wills are so important.
Some practical application of what we just told you.
We just laid some pretty dense legal mumbo jumbo on you. So, here are some examples of how probate might play out.
• Scenario one: John dies with a Will. His Will clearly states who the Personal Representative of his estate is and how they should distribute his assets. The Executor of his Will (generally the same person as the Personal Representative) contacts an attorney within three years after John died. The attorney enters a Petition for Informal Probate along with Jon’s Will and death certificate with the court. The court reviews the Petition, gives any interested parties a chance to answer, and appoints the Personal Representative. The Personal Representative distributes the estate. The entire process takes about four months.
• Scenario two: John dies without a Will. His daughter, Kate, believes that she should be the Personal Representative of his estate. She contacts an attorney who files a Petition for Formal Probate. Her sister, Jane, believes she should be the Personal Representative. She contacts her own attorney who files an Answer to Kate’s Petition stating that Jane should be the Personal Representative. The court reviews the original Petition, the Answer, and any additional documents that are filed. The judge then holds a hearing where Kate and Jane each provide evidence about why they should be the Personal Representative. The court takes everything under advisement and chooses between the two.
Each additional document that is filed with the court and every hearing that takes place adds more time and expense to the probate process. Bob Marley’s estate took more than a decade and $4 million to probate because he died with out a Will and his family fought over the estate’s distribution.
Final Considerations
The bottom line is: the probate process can be simplified or completely avoided through a comprehensive estate plan, which is guaranteed to save your family time and money. But if avoiding probate is not possible, a probate case handled by an experienced attorney does not have to be expensive or prolonged.
If you have questions about an ongoing probate case or is interested in starting one, contact me today for a free initial consultation. You can reach me, Randa, at (801) 608-4706 or randa@skvlegal.com.
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