What is Probate?

Probate is the process that transfers legal title of property from the estate of the person who has died to the proper heirs. If a person dies who owns property in Utah, the heirs might have to go through Utah's probate process.

Probate Steps

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

Opening

A probate action is commenced or opened by filing documents with the court to have a personal representative appointed, and if the deceased had a will, to have the will validated.

Notice to Creditors

In Utah, 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 including paying all known claims.

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. 

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. 

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.

What do Estate Planning Attorneys do?

While you're living and healthy, you take for granted your ability to make your own decisions about your finances, property, health care, and raising your children. When you die or become incapacitated, you'll need others to handle these matters. Estate planning helps to ensure that they are people you trust and that they will handle things according to your wishes.

A skillful attorney can walk you through the process of a choosing effective Agents and drafting estate plans that can be carried out smoothly, diminishing the possibility of inheritance disputes, or will and trust challenges.

It's easy to be lured by legal product providers like Legalzoom, or do-it-yourself software programs, but only qualified attorneys can properly interpret the laws that bear on property rights, taxes, wills, probate, and trusts. A qualified attorney can make sure that your estate documents comply with the laws of your state, maximize your legal advantages, and take care of your wishes and your family's well-being.

What if You Die without a Will?

If you die without a will in Utah, state law will determine who inherits your estate. In Utah, 100% will go a surviving spouse, unless there are children from a previous marriage. If there is no surviving spouse, it goes to children and grandchildren, and if no children it goes to the decedents parents, and then to relatives outside of the immediate family.

This is a plan that works for many, but may not reflect your wishes. With a will you can designate exactly who gets what. There are other functions of a will. Designating the person you want to care for your minor children, who will settle your affairs, and provide for others who are not directly related, or give to charity.

What is a Revocable or Living Trust?

Probate attorneys deal with the legal process of validating a will. The assets of the deceased are inventoried; and all debts and taxes are paid. Then remaining assets are distributed to the named beneficiaries and heirs.

Probate can take anywhere from four months to several years, depending on state laws and individual circumstances.

A will is probated in the county and state where the person who wrote the will died. If there is property in another state, another probate (Ancillary) proceeding will be started in that state and county. Assets that do not pass directly to a surviving spouse or other heir through a right of survivorship such as a payable on death bank account are subject to formal probate proceedings.

If the decedent dies without a will (intestate), and no beneficiaries are named, the courts will determine the hierarchy of heirs according to state laws.