Helping People Through the Probate Process

By Mark J. Morrise, Attorney

The death of a loved one brings grief and many challenges. One of these is to deal with the deceased's personal possessions and assets. If you are facing this task for someone who was a Utah resident or owned property in Utah, you may need to file a Utah probate. Utah Probate Solutions will help you to determine whether a Utah probate is necessary and, if one is, to get through the probate process.

For information on estate planning, see our companion site, Utah Estate Plans.

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Understanding Probate

What Is Probate? · Do I Need to File a Probate? · How Soon Must a Probate Be Filed? · Where Can I Find Probate Assistance? · How Much Does Probate Cost? · How Long Does It Take? · How Does the Probate Process Work?

How To -

Order a Death Certificate · Request a Lump-Sum Death Benefit from Social Security · Avoid Probate · Transfer the Decedent's Personal Possessions, Home, and Bank Accounts · Find a Probate Lawyer

Resources

     Information for Personal Representatives, Heirs and Beneficiaries, and Creditors
     Probate Courts, Attorneys, Law, Forms, and DISCLAIMER Regarding Forms
     New Client Form

Additional Information

Links to Related Sites · About the Author

What Is Probate?

In general, probate is the legal process for making sure that the property of a deceased person (the decedent) is collected and preserved; the decedent's debts and taxes are paid; and the remaining property is distributed to the beneficiaries designated in the decedent's last will or, if the decedent died without a valid will, to the decedent's lawful heirs. The person who does this is called the personal representative, sometimes known as the executor or administrator.

Initially, the necessary probate opening documents are prepared (usually by a Utah probate lawyer retained by the decedent's survivors) and are filed with the probate court. The court appoints the personal representative, who ordinarily administers the estate without court supervision. If the decedent had a last will, the court determines if the will is valid. When the estate has been fully administered, the necessary 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.

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Do I Need to File a Probate?

        When is probate necessary?
        What property can be transferred without a probate?
        When else should probate be considered?
        I've been told I need "letters testamentary." What does that mean?

When is probate necessary?

If the decedent owned assets (such as a home or other real property, bank accounts, or investments) titled solely in his or her name and without a valid beneficiary designation, probate is necessary to sell these assets or distribute them to the beneficiaries or heirs. With the decedent gone, only a personal representative has authority to sign the deed or other document transferring title to these assets. The one exception is when the estate is under $100,000 (previously, $25,000), and therefore a small estate affidavit can be used to collect the decedent's assets.

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What property can be transferred without a probate?

Any of the decedent's untitled property, such as personal and household possessions, valuables, or money, can be transferred without a probate. Doing so, however, may subject such property to the claims of the decedent's creditors.

In addition, several types of property pass outside of probate because they have a built-in transfer mechanism that does not involve probate. Such property includes:

Jointly owned assets, such as a joint bank account or a home or other real estate owned as joint tenants with rights of survivorship
POD (Pay on Death) bank accounts or TOD (Transfer on Death) stock brokerage accounts
Insurance proceeds, including life insurance and accidental death benefits
Death benefits of annuities, pension plans, and retirement accounts, including IRAs and 401(k)s
Property held by a trustee of a living trust

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When else should probate be considered?

Even if the decedent did not own titled property that requires a probate to be transferred, you should still consider a probate if:

The decedent left unpaid debts, and you want to cut off potential claims of the decedent's creditors.
There is a dispute over who is entitled to the decedent's property.
The decedent had a last will, which you want to be able to enforce in court. A will that is not probated is not legally enforceable.
The decedent's estate needs to make an income tax or estate tax election. (Usually, only a personal representative can make this election.)
The person dealing with the decedent's property wants to be discharged from liability to the heirs and beneficiaries after the property is distributed.

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I've been told I need "letters testamentary." What does that mean?

Letters testamentary is a one-page document issued by the court stating that the personal representative has been duly appointed. If someone tells you they will not release an asset of the decedent without letters testamentary, it means they want to deal only with a personal representative.

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How Soon Must a Probate Be Filed?

A Utah probate must be filed within three years of the decedent's death. However, you may want to file sooner that this, especially if family members express a desire to proceed quickly.

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Where Can I Find Probate Assistance?

The author of Utah Probate Solutions, Mark J. Morrise, has over 15 years experience as a probate lawyer and has helped many people through the probate process. He can be reached by telephone at (801) 530-7359 or by e-mail at mjmorrise@cnmlaw.com.

Other possible sources of assistance include attorneys listed in the Attorney Member Listing of the Salt Lake Estate Planning Council, the probate court in the county where the decedent resided or owned property at the time of death, and the Tuesday Night Bar program sponsored by the Utah State Bar, in which lawyers volunteer to meet briefly one-on-one with individuals at no cost and which is held four Tuesdays each month between 5:00 p.m. and 6:30 p.m. at the Utah Law & Justice Center, 645 South 200 East, Salt Lake City, Utah. In addition, persons who qualify may obtain assistance from Utah Legal Services. Finally, assistance may be available through one of the other pro bono programs sponsored or coordinated by the Utah State Bar.

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How Much Does Probate Cost?

The filing fee for a Utah probate is $155, and the cost of one Letters Testamentary is $4.50. In addition, pursuant to statute a personal representative and an attorney are entitled to " reasonable compensation" for services to the estate. An attorney's compensation may be in the form of either an hourly rate fee or a fixed fee.

The estimated average cost of an uncontested Utah probate is about $2,000 to $3,000, which is based on the estimated probate cost in states, including Utah, that have adopted the Uniform Probate Code.

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How Long Does Probate Take?

The minimum time for a Utah probate is four months. Many probates take less than a year. The actual time required depends on various factors, including:

The extent, value, and type of property owned by the decedent
How quickly the personal representative acts
Whether the probate is formal or informal
Whether the decedent's heirs dispute the personal representative's decisions

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How Does the Probate Process Work?

        What are the steps in a probate?
        Who does the court appoint as personal representative?
        When is Utah the right state in which to file a probate?
        Where is a Utah probate filed?
        What are the filing requirements?

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What are the steps in a probate?

        The steps in a probate are (1) the opening, (2) the notice to creditors and estate administration, and (3) the closing.

        Opening. A probate is commenced or opened by filing documents with the probate court necessary to have a personal representative appointed and, if the decedent had a will, to have the will validated. If the opening is formal, a court hearing is required; if it is informal, no court hearing is required.

        Notice to creditors and estate administration. After the probate is opened, the personal representative publishes a notice in the newspaper that creditors must present their claims within three months or be barred. The personal representative does whatever else is necessary to administer the estate, including protecting and managing the estate property.

        Closing. When the notice to creditors period has run, creditors' claims have been paid, and the estate has been fully administered, the personal representative can close the estate by filing the necessary documents with the probate court and by distributing the estate property to the appropriate heirs or beneficiaries. Like the opening, the closing can be formal or informal; again, a formal closing requires a court hearing, and an informal closing does not.

        Generally speaking, a formal opening or closing results in a court order that cannot be challenged later. In contrast, an informal opening or closing usually costs less (because no court hearing is required) but can later be challenged in a formal proceeding. Most Utah probates (over 70%) are opened informally. To view the forms necessary for an informal probate, click here.

The personal representative chooses the type of opening and closing. It's a good idea to get assistance from a Utah probate attorney in making this choice.

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Who does the court appoint as personal representative?

If the decedent had a last will, the court appoints the person chosen by the decedent in the will. If the decedent's first choice for personal representative will not or cannot accept an appointment, then the court appoints the decedent's second choice, and so on.

If all persons chosen in the will fail to accept an appointment as personal representative, or if the decedent died without a valid will, then the court appoints one of the following persons, in descending priority: (1) the decedent's spouse, provided he or she is a beneficiary under the decedent's will, (2) another will beneficiary, (3) the decedent's surviving spouse, whether or not a beneficiary, (4) other heirs, and (5) creditors of the decedent's estate.

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When is Utah the right state in which to file a probate?

A probate should be filed in Utah if the decedent was a Utah resident at the time of death. A probate may also need to be filed in Utah and in the state of the decedent's residence if the decedent was not a Utah resident but owned property in Utah.

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Where is a Utah probate filed?

A Utah probate is filed with the Utah district court in the county where the decedent resided or owned property at the time of death. For a directory of the Utah district courts (maintained by the office of Utah State Courts), click here. To match a Utah city to its county, select the city from the following list:

County Finder

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What are the filing requirements?

General Requirements. In Utah, a probate is filed or opened by presenting the necessary opening documents and paying a $155.00 filing fee to the appropriate district court. As mentioned above, the probate can be opened either informally (no court hearing is required) or formally (a court hearing is required).

Required Documents. The opening documents include an Application (if the opening is informal) or a Petition (if the opening is formal) requesting that the probate court appoint a personal representative and, if the decedent had a last will, that the court validate the will (which is attached to the Application or Petition). Other required documents include a Renunciation by any person with an equal right to serve as personal repesentative; a Statement (if the probate is informal) or an Order (if the probate is formal) by the court appointing the personal representative and validating the will; an Acceptance of the appointment by the personal representative; and Letters issued by the court stating that the personal representative has been duly appointed. An optional document that can speed up the opening is a Waiver of Notice by the decedent's surviving family members and will beneficiaries.

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How to Request a Lump-Sum Death Benefit from the Social Security Administration

A lump-sum death benefit of $255 may be paid upon the death of a person who worked long enough to be insured under the Social Security program. This benefit is limited to a spouse who was living with the worker at the time of death, to a spouse who, in the month of death, is eligible for certain Social Security benefits based on the worker's record, or to a child who, in the month of death, is eligible for a Social Security benefit based on the worker's record. If no spouse or child meeting these requirements exists, then the lump sum death payment will not be paid. To file for the benefit, call 1-800-772-1213 and request an appointment at your local Social Security office.

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How to Avoid Probate

Small Estate Affidavit. A small estate affidavit can be used to collect a Utah decedent's property, except real estate, if the combined value of all the decedent's property (excluding property that passes outside of probate), less liens and encumbrances, does not exceed $100,000 (previously, $25,000). Property that can be collected with a small estate affidavit includes unpaid wages, checking and savings accounts, cars, boats, certificates of deposit, and stocks and bonds.

Lifetime Planning. During life, you can plan your estate to avoid probate by doing the following:

Set up a revocable trust and transfer all your titled assets to it. Any titled assets not transferred to the trust, however, will be subject to probate on your death.
Place property in joint ownership. This does not avoid a probate, however, on the death the final joint owner.
Acquire assets with built-in transfer mechanisms that avoid probate, such as POD (Pay on Death) bank accounts, life insurance, and retirement accounts, including IRAs and 401(k)s

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How to Transfer the Decedent's Personal Possessions

You can transfer the decedent's personal and household possessions, valuables, or money without a probate. Doing so, however, may subject such property to the claims of the decedent's creditors. It could also expose you to liability to the decedent's heirs and beneficiaries if the property is not properly distributed.

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How to Transfer the Decedent's Home or Other Real Property

        If the decedent owned a home or other real property in Utah, the property cannot be sold or transferred until the decedent's survivors establish their legal rights in the property. The way to do this depends on how the decedent owned the property (as shown on the deed giving the decedent his or her ownership interest).

        Joint Tenant with Rights of Survivorship. If the decedent owned the property as a joint tenant with rights of survivorship, the surviving joint owner(s) can terminate the decedent's interest in the property by filing an Affidavit of Surviving Joint Tenant(s) in the county where the property is located. For married couples, this type of ownership is presumed for real property acquired after May 5, 1997 if the deed identifies the owners as husband and wife.

        Trustee of a Trust. If the decedent owned the property as the trustee or co-trustee of a trust (such as the decedent's living trust), the successor trustee(s) can establish their authority over the property by filing an Affidavit of Successor Trustee(s) in the county where the property is located.

        Other Types of Ownership. If the decedent was the only owner of the property, or owned it as a tenant in common with others, or was the last surviving joint tenant with rights of survivorship, then the decedent's survivors can establish their rights in the property by doing one of the following:

File a probate. A personal representative appointed in a probate has authority to transfer the decedent's interest in real property by signing a Personal Representative's Deed. In Utah, the deadline to file a probate is three years after the decedent's death.
Petition for a determination of heirs. After the three-year deadline to file a probate has passed, the decedent's heirs can petition the probate court for an Order Determining Heirs, which then is filed in the county where the property is located.
File an Affidavit of Heirship and Identity. In some Utah counties, including Salt Lake County, the county recorder will accept an Affidavit of Heirship and Identity to establish that title to the decedent's real property in that county has passed to the decedent's heirs. A disadvantage of this approach is that title insurance on the property may be difficult to obtain because some title insurance companies do not recognize the validity of this type of affidavit.

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How to Transfer the Decedent's Bank or Investment Accounts

If the decedent owned a checking, savings, investment, or other account at a bank, credit union, or brokerage firm, the right of the decedent's survivors to access the account depends on who owned the account and, in some cases, why the ownership was set up in that fashion.

Account in Decedent's Sole Name. If the account was owned solely by the decedent, the survivors will ordinarily need to file a probate to access the account, unless the account was one of the following types:

P.O.D. Account. "P.O.D." stands for pay on death. The P.O.D. beneficiaries can access this account by presenting a death certificate.
TOD Account. "TOD" stands for transfer on death. An investment account or a stock certificate naming a TOD beneficiary is, in general, equivalent to a P.O.D. account.
Trust Account. This is an account in the name of a trustee for one or more beneficiaries, where the trust relationship is established by the form of the account and the deposit agreement, and the only assets held in trust are the sums on deposit. For this type of account, if the trustee dies, the beneficiaries can access the account by presenting a death certificate.

Joint Account. For joint accounts, the surviving account owner ordinarily has unrestricted access to the account, unless the decedent made it clear when the account was opened that the decedent did not intend the other account owner to inherit the account upon the decedent's death. For example, if a parent adds a child as a joint owner of a checking account, but makes it clear that the parent intends for the account to be distributed to the parent's heirs at death and that the child was added only to help pay the parent's bills if the parent is unable, then when the parent dies the account should be administered as part of the parent's estate.

Other Accounts. If the decedent owned the account as the trustee of a trust set forth in a separate trust agreement, the successor trustee can access the account. If the decedent was the custodian of an account established under the Uniform Transfers to Minors Act, the minor may designate as successor custodian for the account.

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Expedited Probate Filing Service

        Sometimes a probate needs to be filed quickly. For example, titling problems with jointly owned real estate can delay a loan closing until a probate is filed and the interest of a deceased joint owner is extinguished.

        If you need a probate filed quickly, we can help. We will prepare the necessary probate opening documents and file them within one business day of your first meeting with us. Frequently, the personal representative is appointed the same day that the opening documents are filed.

        If you would like to learn more about our expedited filing service, call us at 1-801-530-7359.

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Information for Personal Representatives

A Utah personal representative is obligated to act in the best interests of the heirs and beneficiaries and to quickly and efficiently administer the decedent's estate. The personal representative has many duties which, in general, include the following:

Take possession of, manage, and preserve the decedent's property
Search for the decedent's last will
Notify the surviving family members of the probate
Prepare an Inventory of the decedent's property and its value
Notify the decedent's creditors of their right to file claims for payment
Pay valid creditors' claims and applicable taxes
Sell estate assets, if necessary, for cash to pay debts and taxes
Distribute the decedent's remaining property to the designated beneficiaries or lawful heirs

For more information on the personal representative's duties, see our List of Selected Duties and Powers of a Personal Representative Appointed in Utah.

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Information for Heirs and Beneficiaries

Heirs and beneficiaries have rights, among others, to:

Require that the decedent's last will be filed with the probate court
File a Demand for Notice of the probate and copies of all filings and orders concerning the estate
Receive an initial Inventory and a final accounting of the decedent's property
Request that the personal representative be supervised by the court or be removed for improper conduct

A surviving spouse may elect against the last will and claim a statutory share (about one-third) of the decedent's estate. The law also provides for allowances and exemptions which, in certain situations, may be of benefit to the surviving spouse, children, or both.

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Information for Creditors

The personal representative publishes an Announcement of Appointment and Notice to Creditors three times in the newspaper. From the date of the first publication, the decedent's creditors have three months in which to file a Claim against the Estate. The personal representative decides which claims are valid, pays them, and sends a Notice of Disallowance of Claim to creditors with claims that are determined to be invalid. Creditors with claims that are determined to be invalid can contest the personal representative's decision by filing a petition for allowance of claims.

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Probate Courts

        You may wish to contact the district court in the county where the decedent died. The district court handles the probates for that county and may have a designated probate clerk. The telephone numbers for the probate clerks in the four major Utah counties are:

        Davis County - 801-447-3868
        Salt Lake County - 801-238-7164 or 801-238-7162
        Utah County - 801-429-1011
        Weber County - 801-395-1173

        For the district court telephone numbers in other counties, look in the Utah State Courts' directory of Utah district courts. To find a district court using a state-wide county map, look at the Utah State Courts' Judicial District Locator Map.

        If you are from out-of-state and don't know which county the decedent resided in, you can match the decedent's city to its county by using our County Finder.

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Probate Attorneys

       The author of Utah Probate Solutions, Mark J. Morrise, has practiced probate law for over 15 years and has helped many people through the probate process. To see his resume information, click here. His contact information is as follows:

                 Mark J. Morrise
                 Callister Nebeker & McCullough
                 Parkview Plaza 1
                 2180 South 1300 East, Suite 600
                 Salt Lake City, Utah 84106
                 (801) 530-7359
                  mjmorrise@cnmlaw.com

       To find other Utah attorneys who practice in this area, see the Attorney Member Listing of the Salt Lake Estate Planning Council.

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Probate Law

Utah law governing probates is found in the following sources:

Utah Uniform Probate Code
Code of Judicial Administration (see Chapter 6, District Court Operations, Article 5, Probate)
Local Rule on Probate in Third District Court
Alternative Dispute Resolution in Probate (Third District Pilot Program)

        Related laws
        Fiduciaries and Trusts
        Restricting Transfers of Trust Interests (Asset Protection Trusts)
        Requirements for Newspapers of General Circulation

        Disposition of Deceased Persons
        Advance directions
        Designation of agent

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Probate Forms

        Before using any of the following forms, read this DISCLAIMER.

        Utah Uniform Probate Code forms - This is a packet of over 90 probate and probate-related forms sold by the Utah State Bar for $30. These forms, which were last updated in 1989, are fill-in-the-blank but do not come with instructions for their use. The address of the Utah State Bar is 645 South 200 East, Salt Lake City, Utah, and their telephone number is 801-531-9077.

         Application for Death Certificate

         Appointment of Guardians - This form can be used by a parent of an unemancipated minor child to appoint a guardian for that child. The alternative to using this form would be for the parent to appoint a guardian in his or her last will.

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About the Author

Mark J. Morrise, the author of Utah Probate Solutions, is a shareholder with the Salt Lake City, Utah law firm of Callister Nebeker & McCullough. His law practice includes probate, wills, trusts, and estates. To see Mr. Morrise's resume, click here.

Mr. Morrise can be reached by telephone at (801) 530-7359 or by e-mail at mjmorrise@cnmlaw.com.

A 1982 graduate of the J. Reuben Clark Law School, Mr. Morrise is a past chair of the Estate Planning Section of the Utah State Bar, is a Fellow of the American College of Trust and Estate Counsel, and is an active member of the Salt Lake Estate Planning Council. He has spoken to professional groups on trust-and-estate related topics. Mr. Morrise is also the manager of utahprobate.com, L.L.C., a Utah company that provides information, resources, and assistance for Utah probates.

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This document is designed to provide an accurate general overview with regard to the subject
matter covered. It is published with the understanding that the author and publisher are not
engaged in rendering legal, accounting, or other professional service. If legal advice or other
expert assistance is required, the services of a competent professional should be sought.