People don’t always decide what happens to their assets after they die. When a person doesn’t make arrangements for the transfer of assets or authority over his or her assets, his/her heirs may need to open a probate. A probate will allow them to gain authority and control over those assets. Probate is the process of determining the heirs of a deceased individual. Probate matters also appoint a personal representative to wrap up the individual’s affairs. Probate is avoidable if a person makes arrangements for the transfer of assets or authority over his or her assets after they die.
So, how do a deceased individual’s heirs know when a probate action is required or should be opened with the court? If you can answer ‘yes’ to any of the following questions, opening a probate action with the court may be necessary. Doing so can allow heirs to gain control and authority over assets, or help resolve disputes and disagreements among them.
FAQs about Probate
1. Did the deceased individual own real estate in his or her name only?
If the deceased individual owned real estate in his or her name only, then the court must appoint a personal representative. The personal representative will either sell or transfer the real estate property.
2. Does the value of the assets held solely by the deceased individual, other than motor vehicles, exceed $100,000.00?
The deceased individual may have owned property jointly with another person at the time of a death. They also may have identified a beneficiary to receive an asset upon death. If assets aren’t jointly owned and a beneficiary isn’t identified to receive the it, a probate will likely be required to gain control and authority over the assets.
If the assets of a deceased individual don’t include real estate and the value doesn’t exceed $100,000.00, you may be able to avoid opening a probate with the court. Instead, you can gain authority and control over the assets through Utah’s small estate process.
3. Was the deceased individual the sole parent or guardian of a minor child?
If the deceased individual was the sole parent or guardian of a minor, a probate action is necessary. The probate action will determine and appoint a guardian for the minor child. A probate action is necessary to confirm the guardian of a minor child – even if the deceased individual nominated a guardian in his or her will or trust.
4. Is there a serious disagreement over who the heirs are of a deceased individual’s personal property?
If the deceased individual did not leave specific instructions for the distribution of his or her personal property, or an heir disputes the validity of those instructions, heirs may open a probate to seek the court’s assistance. The court will help resolve the disputes and disagreements between heirs.
5. Did the deceased individual have creditors who have made a claim on the assets for repayment of the debt?
If the deceased individual owed money for taxes, medical and hospital expenses, or other debts, a creditor may have a claim on his or her assets. A personal representative may need to be appointed to deal with such debts.
6. Does anyone owe money to the deceased individual or are there legal claims which may require court action to collect?
Money owed to the deceased by others or legal claims may be a part of his or her assets. Money from legal claims belonging to the deceased may include injury claims, wrongful death claims, demand for the return of property, claims for elder abuse, claims for financial exploitation, actions for consumer fraud, and etc. A probate may be necessary to appoint a personal representative to collect money owed or pursue potential legal claims of the deceased individual.
7. If the deceased individual had a trust, were some of the individual’s assets not properly transferred to the trust before his or her death?
Arrangements must be made to transfer the individual’s assets to a trust. The trust can be named as a beneficiary of the deceased individual. If an asset was not properly transferred to the trust or the trust was not identified as a beneficiary, a probate may be necessary to gain authority and control over the asset.
8. Has any business, insurance company or anyone else asked for “letters testamentary,” “letters of administration,” or legal authority before they will give money or property to the heirs?
Letters testamentary and letters of administration are issued by the court. This part of the probate confirms the appointment of an executor or personal representative. These letters act as evidence that a person has authority to act on behalf of the estate. Financial institutions and other businesses often require these letters as proof that the personal representative can make decisions about an asset that the deceased owned or held at the time of his or her death.
9. Does the deceased individual’s last will include provisions or conditions that need to be recognized and enforced through a court order?
Some wills include certain provision or instructions that may need to be formally recognized through a court order before they can be enforced.
For example, instead of inheriting a lump sum of money from the estate, a will may include provisions that require a trust be established to hold an heir’s share. The trust may have special instructions or limitations and restrictions on how distributions should be made to that heir. These distributions can be a monthly payment to the heir from the trust or some other type of payment arrangement.
10. Does the family of the deceased want to open a probate and publish notice to creditors to establish a cut off time for creditors to present claims?
If the deceased individual owes money to creditors, the creditors can collect payment from the estate. Heirs may open a probate to appoint a personal representative. The representative will identify creditors by publishing a notice to them and settle the debts. Utah law also allows creditors to request a probate to collect payment from their estate.
11. Is there a dispute over the burial, cremation or disposition of the remains of the deceased which cannot be resolved without court action?
If the heirs disagree on how to handle the burial and/or funeral arrangements, they can open a probate. The court will help in resolving those disputes and disagreements between the heirs.
12. Should a third-party special needs trust be setup for a disabled heir?
If the deceased individual has a disabled heir, it may be in the best interest of that heir to have his or her share of the estate managed through a special needs trust. A probate may be opened to appoint a personal representative for the purposes of establishing a special needs trust for a disabled beneficiary.
13. Does any personal representative want a court order to protect him or her from accusations of wrongdoing by heirs or creditors of the deceased?
A probate may be opened to seek the court’s assistance in finalizing an individual’s administration of a deceased individual’s estate or trust. A court order approving an individual’s administration, or an accounting and final distribution of assets may help avoid future lawsuits or accusations of wrongdoing by an unhappy heir or creditor.
How the probate process works in Utah
Probate generally has three stages: 1) Opening a Probate and Appointing a Personal Representative, 2) Administering the Estate, and 2) Closing the Estate. A probate may be a formal or informal proceeding depending on whether or not court involvement or oversight is necessary. If uncontested by heirs or creditors, a probate and the appointment of a personal representative may occur within a few weeks of an initial request.
If you answered “yes” to any of the above questions, you should seek legal advice to determine whether a probate is necessary. Our experienced lawyers can help make probate easier by navigating you through the process. If you need help with a probate or have questions, contact our office at 801-544-5306 for a free consultation.