Kenneth Carroll: Utah Probate Code 75-2-101

Intestacy is the condition of the estate of a person who dies without having in force a valid will or other binding declaration. Alternatively, this may also apply where a will or declaration has been made, but only applies to part of the estate; the remaining estate forms the “intestate estate”. Intestacy law, also referred to as the law of descent and distribution, refers to the body of law (statutory and case law) that determines who is entitled to the property from the estate under the rules of inheritance.When a person dies without having a valid will in place, his or her property passes by what is called “intestate succession” to heirs according to state law. In other words, if you don’t have a will, the state will make one for you. The purpose of intestate succession statutes is to distribute the decedent’s wealth in a manner that closely represents how the average person would have designed his or her estate plan, had that person had a will. However, this default can differ dramatically from what the person really would have wanted. Even where it is known what the person intended, no exceptions are made where no valid will exists. Nor are there any exceptions made based on need or special circumstances.

Will in Utah

Adult residents of Utah may make a will disposing of their estate after death. The freedom to control where your property goes is subject to certain limitations if you are married or have children. Your spouse is entitled to one third of the estate as well as a $15,000 homestead allowance and $10,000 in furniture, furnishings and personal effects. If you have no surviving spouse, but have surviving children, they will be entitled to these benefits. The remainder of your property will pass according to your will, or according to the state’s laws of intestate succession if no valid will is present.

Surviving Spouse

If you die without a valid will in Utah, the law directs that your estate be distributed to your relatives without regard to the quality of your relationships. If you leave a surviving spouse, but no children, or the children are also the children of your spouse, your spouse will be awarded the entire estate. If you leave a surviving spouse and children not of the surviving spouse, the spouse is entitled to $75,000 plus one-half of the estate.

Surviving Children

If you leave no surviving spouse, your surviving children will share equally in all of the estate in Utah. Likewise, if the children are not of the surviving spouse, they will share equally in one-half of the estate, minus the additional $75,000 award to the spouse. However, if some of your children are deceased but have living children, these grandchildren share equally in their parents’ share. For example, assume you have five children, each with three children of his own. If only four of your children survive you, each of the surviving children is entitled to one-fifth of the estate. The remaining one-fifth is then split equally among the children of your deceased child.

1990 Uniform Probate Code

The 1990 Uniform Probate Code (the Code) serves as the starting point for many states’ laws. Nevertheless, the laws of different states can vary greatly from each other and from the Code itself. However, the Code represents the best reference for a general discussion.Under the Code, close relatives take property instead of distant relatives. The classes of relatives whose members receive property under the Code include the decedent’s surviving spouse, descendants (children, grandchildren, etc.), parents, descendants of decedent’s parents (siblings, nieces and nephews), grandparents, and descendants of grandparents (aunts and uncles and cousins). Adopted descendants are treated the same as biological descendants. If none of the above-named classes of relatives include any persons qualified to take the estate, the property “escheats” (goes by default) to the state.

75-2-101 Intestate Succession

Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs as provided in this title, except as modified by the decedent’s will. A decedent by will may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession. If that individual or a member of that class survives the decedent, the share of the decedent’s intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed his intestate share.

What Happens When Someone Dies Without Heirs

When residents of Utah pass away without a valid will their estate is subject to the laws of intestacy. Intestate succession can be a complicated process. The way the court distributes property depends on the type of assets and the number of relatives. We’ll take a look at some of the major aspects of intestate succession in Utah.

The Typical Intestate Distribution

As stated, all jurisdictions have intestacy laws that come in to play when a person dies without a will. It helps to understand how intestacy works when heirs do exist. Utah Codes 75-2-101, 75-2-102 and 75-2-103 work in conjunction to determine who should receive the property.First, the entire estate goes to a surviving spouse if no children outside of the marriage exist. If the decedent has descendants outside of the marriage, the spouse is only entitled to $50,000 of the estate plus half of anything that remains. Another code section, 75-2-206, states that the surviving spouse’s share can be charged for any death benefits (such as workers’ compensation) which are received. This would reduce the amount that the spouse can claim and preserve funds for the descendants.When an estate goes directly to surviving descendants, there is a particular order mandated by law. There will be a per capita distribution for each generation of the decedent’s lineal descendants. If no descendants exist, the estate may be given to the decedent’s parents. In a situation without parents, the descendants of the decedent’s parents may get the estate. This includes a parent’s children outside of the marriage that produced the decedent.In situations where neither parents nor descendants exist, the estate will go to any living grandparents of the decedent. The estate may then pass to equally to the paternal and maternal grandparents of the decedent. For further information on this ordering system, it is a wise idea to speak to an estate attorney.

When There Is No One

In Utah, if you leave no spouse and no descendants, your estate will pass to your parents. If you left no parents, your property will pass to any of your surviving siblings. If you have no surviving siblings, one-half of the estate will pass to your maternal grandparents or their descendants, and the other half will pass to your paternal grandparents or their descendants. If no living relatives can be found, the property escheats to the state to be placed in an education fund.However, this very rarely happens because the laws are designed to get your property to anyone who was even remotely related to you. For example, your property won’t go to the state if you leave a spouse, children, siblings, parents, grandparents, aunts or uncles, great uncles or aunts, nieces or nephews, cousins of any degree, or the descendants of a spouse who dies before you do.

Property Subject To Intestacy Laws

Under Utah Code § 75-2-101 any property that would have been included in a will can be passed through intestate succession. In most cases this means any assets that are solely owned by the decedent. Most high value items are not subject to the rules of intestacy. This includes life insurance, 401k accounts, joint tenancies in real property and payable-on-death financial accounts. A probate lawyer is your best source of information regarding the types of property that are affected by intestacy.

Divvying Up Assets

Utah Code § 75-2-102 provides the instructions on how to divide intestate property among living relatives. In the typical case where a spouse dies and the surviving spouse remains with children from the marriage the spouse will receive everything. If the neither spouse has children the estate will also pass to the surviving spouse.If the decedent is married and only has children outside the marriage (i.e. from a prior relationship) the surviving spouse will get 75% of the estate and half of the estate balance. The children will receive all the other property.In the situation where a person dies and has no spouse or children the court will look to his or her parents. The decedent’s parents will inherit the entire estate. It’s a similar situation for a person who dies without a spouse, children, or parents. In this case the decedent’s siblings will receive the estate.Of course it is possible for many other types of family relations to exist. The Utah code tries to account for each possible situation. Half-relatives will inherit as if they were full-blood relatives. Adopted children are entitled to a full share while stepchildren (not adopted) are not. Children of the decedent who were legally adopted by another family do not receive a share. Yet, a male decedent’s children born outside of marriage can inherit if paternity was recognized by the decedent.

Which Assets Pass by Intestate Succession

Only assets that would have passed through your will are affected by intestate succession laws. Usually, that includes only assets that you own alone, in your own name.Many valuable assets don’t go through your will and aren’t affected by intestate succession laws. Here are some examples:
• property you’ve transferred to a living trust
• life insurance proceeds
• funds in an IRA, 401(k), or other retirement account
• securities held in a transfer-on-death account
• real estate held by a transfer-on-death or beneficiary deed
• payable-on-death bank accounts, or
• property you own with someone else in joint tenancy.
These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will.

Who Gets What in Utah?

Under intestate succession, who gets what depends on whether or not you have living children, parents, or other close relatives when you die. Here’s a quick overview:
If you die with here’s what happens:
• children but no spouse – children inherit everything
• spouse but no descendants – spouse inherits everything
• spouse and descendants from you and that spouse – spouse inherits everything
• spouse and descendants from you and someone other than that spouse – spouse inherits the first $75,000 of your intestate property, plus 1/2 of the balancedescendants inherit everything else
• parents but no spouse or descendants – parents inherit everything
• siblings but no spouse, descendants, or parents – siblings inherit everything

Survivorship period

To inherit under Utah’s intestate succession statutes, a person must outlive you by 120 hours. So, if you and your brother are in a car accident and he dies a few hours after you do, his estate would not receive any of your property.

Half-relatives

“Half” relatives inherit as if they were “whole.” That is, your sister with whom you share a father, but not a mother, has the same right to your property as she would if you had both parents in common.

Posthumous relatives

Relatives conceived before but born after you die inherit as if they had been born while you were alive, as long as they survive at least 120 hours after birth.

Immigration status

Relatives entitled to an intestate share of your property will inherit whether or not they are citizens or legally in the United States.

Advancements

Utah considers non-probate transfers as advancements on a relative’s share. So, if your spouse receives life insurance proceeds or funds from a payable on death account, these amounts are included when calculating your spouse’s share. Additionally, if you make a gift during your lifetime to your relative and put in writing that this should be an advancement at the time of making the gift or your relative states this in writing, the value of the property is subtracted from your relative’s share.