Kenneth Carroll: Utah Formal Probate

In Utah, as in many other states, there are two ways to administer the estate of a decedent in probate. In Utah these are called formal and informal probate. Other states may have different names. Georgia, for example, calls its two methods of probate solemn and common. In Utah, informal probate is the more common. It’s simpler, faster and generally less expensive. All that has to be done is to file an application for probate with the will. The application for probate names the proposed personal representative (also known as the executor) and lists the names and addresses of the heirs. Then the court gives notice of the application to the heirs, who have a period of time in which to object the appointment of the personal representative. If there is no objection, the application is granted and the applicant is named as personal representative. Letters Testamentary are also issued by the court. This is a document that gives the personal representative the power to act on behalf of the estate, such as signing documents such as deeds or contracts to sell property, taking control of bank and financial accounts and doing everything necessary to administer the estate. That’s about the only involvement with the court system that there is in an informal probate.

A formal probate starts out much the same way with the appointment of the personal representative. However, after that much more is involved. Notices to creditors to file claims against the estate have to be given, either by mail or publication. There is a waiting period in which claims can be filed. The personal representative files periodic reports with the court of property she collects and claims she pays. When the probate is finally administered (meaning all property has been collected, all bills have been paid and all remaining property has been distributed to the heirs) there is a final accounting and the personal representative is discharged and the probate closed.

Why Would Anyone Use Formal Probate?

It’s longer, more complicated and more expensive. The reasons for using formal probate all have to do with the protection given the estate and personal representative by the court’s supervision. After notice to creditors is given, after the claim period has expired and after the estate is closed, any claims are cut off. Neither the estate nor the personal representative has any further liability for any debts unless gross malfeasance or fraud is shown. In informal probate, if a claim arises years later, the estate or personal representative could potentially be held liable. One advantage, besides simplicity, that informal probate has over formal probate is that the probate is never closed. So if, years after the fact, some property is discovered, such as shares of stock or a forgotten life insurance policy, the appointed personal representative can deal with it without having to reopen the probate.

What Are My Probate 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 Utah 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 Utah 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.

• 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, which are 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.

What You Need for File A Formal Probate For An Estate

Formal probate matters are typically heard by a judge and may involve one or more hearings before the court. A formal probate proceeding requires both written notice and publication notice before the allowance of the formal petition. There are different forms you’ll need to file depending on whether or not the decedent (the person who has died) died with a will.
If the decedent died with a will, you’ll need to file:

• Petition for Formal Probate of Will and/or Appointment of Personal Representative
• Surviving Spouse, Children, Heirs at Law
• Devisees
• The original will if it’s available, or if not, a statement of the will’s contents
• A certified copy of the death certificate if it’s available, or if not, an affidavit
• Citation-Return of Service , which will be issued to you by the court
• Decree and Order on Petition for Formal Adjudication
You may also need to file:
• Bond if you want to appoint a personal representative
• Military Affidavit if not all interested parties (anyone having a property right in or claim against an estate) agree to the petition
• An authenticated copy of the will and appointment if it’s for an ancillary (additional) probate proceeding
• Assent and Waiver of Notice/Renunciation/Nomination/Waiver of Sureties
• Cause of Death Affidavit, Affidavit of Witness to Will , Affidavit of Domicile or no conflict of a conservator (an affidavit stating a conservator of an incapacitated person or minor with an interest in the estate has no conflict of interest)
• Proof of guardianship or conservatorship
• Uniform Counsel Certification Form
If the decedent died without a will
You’ll need to file:
• Petition for Formal Probate of Will and/or Appointment of Personal Representative
• Surviving Spouse, Children, Heirs at Law
• A certified copy of the death certificate if it’s available, or if not, an affidavit
• Citation-Return of Service , which will be issued to you by the court
• Decree and Order on Petition for Formal Adjudication
You may also need to file:
• Bond if you want to appoint a personal representative
• Military Affidavit if not all interested parties (anyone having a property right in or claim against an estate) agree to the petition
• Assent and Waiver of Notice/Renunciation/Nomination/Waiver of Sureties
• Cause of Death Affidavit , Affidavit of Domicile or no conflict of a conservator (an affidavit stating a conservator of an incapacitated person or minor with an interest in the estate has no conflict of interest)
• Proof of guardianship or conservatorship
• Certification Form
Fees For File A Formal Probate For An Estate
• Probate petition filing fee – $360

How to File file a Formal Probate for an Estate

In person
Once you have the required forms, file them at the correct Utah District Court.

• File in any county where the decedent had property when they died. You may need to file additional forms in the state where the decedent lived as well.

• Serve thenotice: After you file and pay for a formal petition, the Registry of Probate will issue formal notice to the petitioner (the person filing for probate). The formal notice is called a citation. You’ll need to serve a copy of the citation on all interested persons and publish a copy in the newspaper listed in the Order of Notice.

When planning your estate and your future, there are always many different decisions that need to be made ranging from your particular financial needs to the types of estate planning instruments that will best accomplish your goals to who should be the beneficiary of your will or a trust. One thing that will not be planned by you personally will be whether your estate goes through informal or formal probate after you pass away. Your personal representative will probably be the one who makes this decision, but it is still important to understand the difference between the two processes. Informal probate begins when a personal representative makes application to a probate registrar. In informal probate, the application does not go to a judge. It is very important to make sure the personal representative completes the paperwork accurately as there will not be a probate hearing; the paperwork will be what the probate registrar uses in order to make all decisions that come up in the future. The paperwork needs to include a variety of information, ranging from the names of the heirs, the assets and debts of the estate, and personal information of the decedent. In some counties, the application must be presented in person to the registrar, but in many counties, the application may be simply mailed in.

If the application is approved by the probate registrar, notice can then be sent to all interested parties such as heirs, creditors, and the personal representative, if that is not the person who filed the application. The personal representative will receive letters testamentary from the registrar allowing him or her to take action to dissolve the estate, such as paying off debts and selling assets. Informal probate can go forward with very little oversight from the courts. By contrast, formal probate begins with the filing of a petition asking a judge to decide if the will is valid, appoint a personal representative, and determine the heirs of the deceased. In some cases, the petition may also request that the process be supervised, which mean the court would must approve distributions to the heirs before they are made. Formal probate may be appropriate where there are minors who stand to inherit; there is a dispute over the validity or existence of the will, or not knowing who should be appointed as the personal representative of the estate.

When a person dies, they are called a decedent. A decedent leaves property behind. That property needs to be passed on to those who will inherit it. The property could include:
• Real property (houses and other buildings, land and the things attached to it)
• Personal property (furniture, cars, and other things not attached to land)
• Bank accounts
• Stocks and bonds
• Debts owed to the person
The law spells out how a person’s property must be distributed when that person dies. In some states, the probate courts are in charge of making sure a decedent’s estate is distributed correctly. This is called probate administration. The estate includes a lot of the decedent’s property. Some of the property is not part of the estate and is not distributed through the probate court. The estate does not usually include:

• Jointly owned property
• Insurance policies
• Retirement accounts
• Trusts that are not established by a will

Jointly Owned Property

Jointly owned property is property owned by more than one person. It is generally not included in an estate. Examples of jointly owned personal property are if you and the decedent are both listed on the title of a car or if you have a joint bank account. When the decedent died, you automatically had full ownership of that property, so it is not part of the estate. You may want to take a copy of the decedent’s death certificate to the bank or Secretary of State Office to remove the decedent’s name from the account or car title. However, sometimes joint ownership is more complex. If you own real property with the decedent, or if you own any property with the decedent and someone else, ownership can be hard to understand after a death.

There are different ways an estate can be administered. If the estate does not have much property in it, you may be able to use a simplified process where the probate court is not involved at all, or only a little bit. The simplified processes are:
• Assignment of property
• Transfer by affidavit
• Collecting money due from an employer
• Transferring a vehicle
• Collecting personal property
These processes ignore the wishes in a decedent’s will, if any. In order to qualify for a simplified process, an estate must be worth $23,000 or less for a decedent who died in 2019. This number goes up every few years.

Appointing a Personal Representative

The order from highest to lowest priority is:
• The person named as personal representative in the decedent’s will
• The decedent’s surviving spouse, if the spouse is a devisee
• Other devisees of the decedent
• The decedent’s surviving spouse, if the spouse is not a devisee
• Other heirs of the decedent who are not devisees
• A creditor’s nominee (the creditor must wait 42 days after the decedent’s death to nominate someone, and the court must find the nominee suitable)

• The state or county public administrator (this person must wait 42 days after the decedent’s death, and there must be no known heir or U.S. resident beneficiary entitled to a share of the decedent’s estate)
A person who is named as the personal representative in a valid will has the highest priority. This person cannot transfer this priority to anyone else. However, everyone else can transfer their priority by nominating another person to be the representative. Also, a judge can find the person with the highest priority to be unsuitable and nominate and appoint someone else. If someone has a higher priority than you do to be the personal representative, it does not mean that you cannot be appointed as the personal representative. It only means that if that person challenges you to be the personal representative, he or she will likely be appointed.