Mary Johnston: Probate Assistance

The word “probate” sometimes brings to mind thoughts of contested wills, family fights, lengthy legal arguments, and expensive attorney fees. The reality is that many probate actions can be handled quickly and without excessive costs. In general, probate is the legal process for making sure that the property of a deceased person 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 .
Probate can be a complicated and stressful process that requires multiple court appointments, filling out detailed forms, and an understanding of legal regulations.

In truth, the entire process can be a legal nightmare for the layperson, and the last thing you may want after the death of a loved one is to deal with the matters of settling their property. It requires submitting documents, filing notices, and informing various government agencies of scheduled hearings. There may also be moments where a probate judge or a court representative will ask to review documents, which will leave you scurrying to and from the courts without much notice or time. Hiring a probate attorney, however, will help you skip the courtrooms entirely, as an attorney can handle all those affairs on your behalf.

A probate attorney will also help you take possession of the deceased person’s property and provide expert advice regarding estate management. Assets such as bank accounts, securities accounts, deeds to real estate properties, jewelry and other assets will need to be inventoried and appraised during the probate process. Once those items are taken care of, a final distribution of the estate is typically made soon after an estate tax return has been filed generally around eight months after the date of death. If a lawyer is not used during probate, the entire process is extremely complicated, and any minor omissions or missed deadlines will only slow down or even stop probate in its tracks.

Hiring a probate attorney will only provide you with the peace of mind that your family’s affairs are being handled in the proper and most efficient manner possible.

The executor of the will is responsible for starting the probate process, retaining an attorney, and taking caring of all financial obligations the deceased person left behind. An executor is typically named in the will, but if not will is available; the probate court will name a close relative to handle the process. A representative, either the executor named in the will or an individual named by the probate court, will be appointed to disperse real and personal property. This individual also collects debts owed to the deceased.

The will is validated by the probate court. If there is no will, then the probate court designates a legal heir usually a close relative to serve as the administrator. A list of assets from the estate is presented to the probate court. Beneficiaries named in the will, or heirs-at-law if there is no will, are notified that the probate process is taking place. Creditors are notified of the proceedings so they can file claims for any debts owed to them. Title to decedent’s property, such as real estate, bonds and stocks, are cleared so that the property can be passed onto beneficiaries or sold. Any jointly held properties or assets with the right of survivorship which means ownership is transferred over once someone passes away. However, the property will eventually pass through probate once the surviving owner passes away.

Duration Of Probate

Probate is a complicated issue with many moving parts involved and it can last anywhere from eight months to several years. It can take much longer if the estate is challenged by family members at odds with the decision. Typically, probate will take about eight months to a year, but the exact factors for determining a timeline will depend on each person’s unique situation. The probate court will not enter an order of distribution allowing assets and property to be transferred to waiting beneficiaries until all the correct paperwork has been approved, and all debts have been paid including court fees, estate taxes, debts and until all stocks and bonds have been cleared. 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

Initially, the necessary probate opening documents are prepared usually by a 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.

Property That 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

• Property held by a trustee of a living trust

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.

Probate Assistance Options

 Small Estate Affidavit: You may be able to avoid filing a probate by signing a small estate affidavit, which can be used to collect a decedent’s property, except real estate, if the net value of the decedent’s property subject to probate does not exceed $100,000. A small estate affidavit is not legally available, however, until 30 days after the decedent’s death.

 Filing Options: If filing a probate cannot be avoided, the most common filing options are Informal probate, which is generally appropriate for simple, uncontested estates and usually costs less than a formal probate because no attorney travel or in-court time is required. In some circumstances, the decedent’s relatives may be required to sign written consents to this process. While Formal probate, which is appropriate for estates in which the right of the person seeking appointment as personal representative is contested or in which some other dispute may arise. Formal probate requires an in-court hearing, which the attorney but not the client is required to attend.

 Order Determining Heirs: This is appropriate when the decedent’s Utah 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 option can be used when the decedent resided outside Utah at the time of death, a probate has been filed there, and the decedent owned Utah real estate or other property that needs to be sold.

Steps In A Probate

• 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.

Filing Requirements For Probate

 General Requirements: In Utah, a probate is filed or opened by presenting the necessary opening documents and paying a filing fee to the appropriate district court

 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 representative; 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. If the decedent had a last will, the court appoints the person chosen by the decedent in the will. 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:

• the decedent’s spouse, provided he or she is a beneficiary under the decedent’s will,

• another will beneficiary,

• the decedent’s surviving spouse, whether or not a beneficiary,

• other heirs,

• Creditors of the decedent’s estate.

Duties Of A Personal Representative

A 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:

I. Take possession of, manage, and preserve the decedent’s property

II. Search for the decedent’s last will

III. Notify the surviving family members of the probate

IV. Prepare an Inventory of the decedent’s property and its value

V. Notify the decedent’s creditors of their right to file claims for payment

VI. Pay valid creditors’ claims and applicable taxes

VII. Sell estate assets, if necessary, for cash to pay debts and taxes

VIII. Distribute the decedent’s remaining property to the designated beneficiaries or lawful heirs

There are numerous reasons that wills may be challenged, although most wills go through probate without a problem. Additionally, a probate attorney may be responsible for performing any of the following tasks when advising an executor:

• Collecting and managing life insurance proceeds;

• Getting the decedent’s property appraised;

• Finding and securing all of the decedent’s assets;

• Advising on how to pay the decedent’s bills and settle debts;

• Preparing/filing documents as required by probate court;

• Managing the estate’s checkbook; and

• Determining whether any estate taxes are owed.

A party may challenge any aspect of the probate administration, such as a direct challenge to the validity of the will, known as a will contest, a challenge to the status of the person serving as personal representative, a challenge as to the identity of the heirs, and a challenge to whether the personal representative is properly administering the estate. The personal representative must understand and abide by the fiduciary duties and to treat all beneficiaries equally. Not complying with the fiduciary duties may allow interested persons to petition for the removal of the personal representative and hold the personal representative liable for any harm to the estate.

Probate Assistance in Utah Free Consultation

When you need legal help with a probate, please call Ascent Law LLC for your free estate law consultation (801) 676-5506. We can help you with probate administration, probate litigation, Estate Planning, asset protection, lawsuits for estates, and more. We want to help you.