We are often asked “What do I do after a loved one dies?” Even with a Will or revocable living trust, when a person dies their estate must be settled. Check out our estate settlement page for more information about this process. Here are answers to some common questions about probate in Utah:
Probate is a legal process where a Utah court (1) authenticates the Will of a person who died (decedent), or if there is no Will (intestate) determines the decedent’s beneficiaries, and (2) appoints a personal representative to act on behalf of the probate estate. The personal representative is sometimes called the executor.
Generally, all property titled in the decedent’s individual name at death, or payable to the decedent after the decedent’s death, is subject to probate. Assets titled in the name of a trust or assets that are paid to others under a beneficiary designation are usually not subject to probate. See the question below about when probate is required.
Once a personal representative is appointed by the court, the personal representative must administer (or settle) the probate estate. This may include collecting money and property, selling or safeguarding such assets, paying proper debts and expenses, filing and paying taxes, accounting for the estate’s financial activities, and distributing the remaining assets according to the beneficiaries of the probate estate.
An “Estate” is a term with several meanings but in this context generally means all the money and property owned by a particular person when they die, whether in their name or in a trust the person created. This can be confusing as the term “estate” is sometimes used interchangeably to refer to the “probate estate” described below.
The “Probate Estate” generally means all property owned in the decedent’s individual name at death, or payable to the decedent after the decedent’s death. The probate estate includes all real property and personal property, along with any debts or obligations owed by the decedent.
In Utah, probate is necessary if one of these statements is true:
Property (regardless of total value) owned by a trust, paid to others under a beneficiary designation (such as life insurance or retirement benefits), or owned in joint tenancy with a surviving tenant, is not included in the $100,000 amount above. Even if probate is unnecessary, there are some circumstances when it may be advantageous to file a probate, such as to deal with creditors more effectively or in certain family situations.
Example A: Joe dies domiciled in Utah in 2018 with a bank account in his name with $20,000, and a timeshare in Park City, Utah worth $15,000. A probate must be filed in Utah for Joe’s estate because the timeshare is real property.
Example B: Shelly dies domiciled in Utah in 2018 with a bank account in her name with $20,000 and a stock certificate in her name worth $88,000. A probate must be filed for Shelly’s estate since the personal property exceeds $100,000 in value.
The costs and complexity of probate in Utah were dramatically reduced when Utah adopted the Uniform Probate Code. Ultimately, the cost of probate depends on the size and complexity of the probate estate. Most attorneys charge on an hourly basis. Attorneys experienced in probate and estate settlement often have the expertise to assist your family in a cost-efficient and timely manner and can help avoid costly mistakes that can have serious adverse tax consequences.
Because of the complexity that can arise in even a small estate, we recommend you hire an attorney experienced with Utah probate law.
Probate may involve one or more of the following:
***This content is provided for informational purpose only, and does not constitute legal, financial, or tax advice, and does not establish an attorney-client relationship. You should not rely on, or act based on its content prior to consulting with a qualified attorney regarding your specific circumstances. Click here for more details.
3521 North University Avenue
Provo, Utah 84604