Kenneth Carroll: Utah Probate Code 75-3-204

Demand for notice of order or filing concerning decedent’s estate.
Any interested person desiring notice of any order or filing pertaining to a decedent’s estate may file a demand for notice with the court at any time after the death of the decedent stating the name of the decedent, the nature of his interest in the estate, and the demandant’s address or that of his attorney. The clerk shall mail a copy of the demand to the personal representative if one has been appointed. After filing of a demand, no order or filing to which the demand relates shall be made or accepted without notice as prescribed in Section 75-1-401 to the demandant or his attorney. The validity of an order which is issued or filing which is accepted without compliance with this requirement shall not be affected by the error, but the petitioner receiving the order or the person making the filing may be liable for any damage caused by the absence of notice. The requirement of notice arising from a demand under this provision may be waived in writing by the demandant and shall cease upon the termination of his interest in the estate.

Order for Probate

After the initial Probate hearing the Judge will sign Judicial Council Form DE-140, Order for Probate. The Order for Probate is used to appoint the Executor or Administrator of the Estate and should be issued at the same time as the Letters of Administration which are issued so the Administrator can begin managing the estate.

Contents Of Probate

The Order for Probate will list the date, time, department and Judge who heard the case and will indicate what the Judge ordered. The Court must find that all required notices were given at the correct times and all interested parties were served. The Order will list the date the decedent died, indicate if they were or were not a resident of California and of the county in which the Probate case was opened, if the decedent died with or without a Will, the date of the Will and any codicils that were executed. The Court will then indicate on the Order for Probate that the Petitioner is appointed the Personal Representative as either executor of the decedent’s Will, administrator with Will annexed, administrator or special administrator and will determine if the special administrator will have general powers, special powers or can continue without notice of hearing.

Authority of the Personal Representative

The Judge will give authority to the Personal Representative by either giving full authority, which is governed under the Independent Administration Estates Act and allows the Personal Representative to manage the estate (i.e., sell property, manage assets and make distributions) without obtaining a Court order. The Judge can grant limited authority where nothing can be done without Court supervision and a Court order would be needed to sell, purchase, exchange or borrow money against any real property. At this time the Judge will determine if it is necessary for the Personal Representative to obtain a bond. If bond is required the Judge can determine a fixed amount to be obtained by a surety company or for the Personal Representative to make a deposit into a blocked account. Lastly, the Judge will order whether or not the Personal Representative is or is not authorized to take any money or property without a further Court order and depending on your county’s local rules, a Probate Referee will be appointed. The Judge will then date and sign the Order for Probate and you will take the Order and the Letters for Administration to the Clerk of the Court to have the documents certified.

Probate In Utah

Probate is the court-supervised process of gathering a deceased person’s assets and distributing them to creditors and inheritors. As an executor, your probate process will depend on whether your state has adopted the Uniform Probate Code (UPC), which is a set of probate laws written by a group of national experts. The UPC’s goal is to make the probate process simpler, especially for small estates, and to give executors more flexibility in how they proceed.

The Probate Process in Non-UPC States

Every probate court has its own detailed rules about the documents it requires, what they must contain, and when they must be filed. Bearing in mind that no estate is perfectly typical, here is an outline of the probate process states that do not use the entire UPC. (Almost all states have enacted bits of the UPC.)

Getting Started

You begin the probate process by asking the court to officially make you executor. If you end up acting as executor, you’ll need to:

• File a request (called a petition or application) for probate in the county in which the deceased person was living at the time of death. You will also need to file the death certificate and the original will (if there is one) with the court.

• Publish a notice of the probate in local newspaper according to court rules. Mail notices to creditors you know about.

• Mail the notice to beneficiaries and heirs, as required by the court.

• File proof that you properly published and mailed the notice.

• Post a bond (if required by the court), which protects the estate from any losses you cause (up to a certain dollar amount). The amount of the bond depends on the size of the estate.

• Prove the will’s validity by providing statements from one or more witnesses to the will. This is often done by submitting the “self-proving affidavit” that was signed by the witness in front of a notary at the time the will was signed.

• File other documents required by the court.

Administering the Estate

As executor, you’re in charge of keeping estate property safe during the probate process. You will prepare a list of the deceased person’s assets and, if necessary, get assets appraised. You’ll need to:

• Get an employer identification number for the estate from the IRS.

• Notify the state health or welfare department of the death, if required by state law.

• Open an estate bank account.

• Arrange for preparation of income tax returns.

• Prepare and file an inventory and appraisal of estate assets.

• Mail a notice to creditors and pay debts (state law may impose a deadline on you).

• If the court requires it, file a list of creditors’ claims you have approved and denied.

• If required, file a federal estate tax return within nine months after death. (Most estates are not large enough to owe federal estate tax).

• If required, file a state estate tax return, usually within nine months after death. (Fewer than half the states impose their own tax.)

Closing the Estate

When the creditor’s claim period has passed, you’ve paid debts and filed all necessary tax returns, and any disputes have been settled, you’re ready to distribute all remaining property to the beneficiaries. You’ll need to:

• Mail a notice to heirs and beneficiaries that the final hearing is coming up. (This must be done a certain period of time before the hearing; the court will have a rule.)

• File proof that you mailed the notice as required.

• Get the court’s permission to distribute property.

• Transfer assets to the new owners and get receipts.

• After you distribute assets and all matters are concluded, file receipts and ask the court to release you from your duties.

The Probate Process in UPC States

Although the law is very similar in the states that have adopted the entire UPC for probate, it isn’t identical. You’ll need to learn your own state’s (and sometimes your own county’s) particular rules. Under the UPC, there are three kinds of probate: informal, unsupervised formal, and supervised formal. Here is an overview of each.

Informal Probate

Most probates in UPC states are informal. This relatively simple process is used when inheritors are getting along and you don’t expect problems with creditors. If anyone wants to contest the proceeding, you cannot use informal probate. The whole process is just paperwork — there are no court hearings.

The first step is to file an application with the probate court to begin an informal probate and serve as the “personal representative” (the term UPC states use instead of “executor” or “administrator”).Once your application is approved, you will have official authority — often in the form of a document called “letters testamentary” or “letters” — to act on behalf of the estate. You will need to do the following:

• Send out formal written notices of the probate to heirs, beneficiaries, and creditors that you know about.
• Publish a notice in the local newspaper to alert other creditors.
• Provide proof that you’ve properly mailed and published the notices.
• Prepare an inventory and appraisal of the deceased person’s assets.
• Keep all estate property safe during the probate.
• Properly distribute the property.
• After you have distributed the property, you can close the estate informally by preparing and filing a “final accounting” with the court.
Finally, you’ll file a “closing statement,” stating that you have paid all debts and taxes, distributed the property, and submitted the final accounting.

Unsupervised Formal Probate

Unsupervised formal probate in UPC states is a traditional court proceeding, much like the regular probate described above. It is generally used when there is a good reason to involve the court — for example, if there’s a disagreement over the distribution of the estate’s assets, the heirs need to be determined (if there is no valid will), or minors are inheriting significant property. You may need to get the court’s permission before you sell the deceased person’s real estate, distribute property to beneficiaries, or pay a lawyer — or yourself — for work done on behalf of the estate. To close the estate, file an accounting that shows how you handled the estate’s assets.

Supervised Formal Probate

Supervised formal probate is the rarest form of probate. It’s used only if the court finds it necessary to supervise the probate procedure — for example, because a beneficiary can’t adequately look after his or her own interests and needs the court’s protection. As you might expect, you must get court approval before distributing any property in this case.

What is meant by “written notice of filing” of an order?

Filing occurs when the district court administrator officially makes the order part of the record. The administrator will stamp the order with the date of filing. The administrator may file the order on the same day that the district court judge signs it, but sometimes the order is not filed until later. A “notice of filing” is a separate document that must, at a minimum, notify the recipient what it is that has been filed and the date of filing. An appeal from an appealable order must be filed and served within 60 days after service by any party of written notice of the filing of the order. A “party” is a person or entity who participated in the district court proceeding. The district court administrator is not a party, so generally a notice from the court administrator about the filing of an order does not start the appeal time. An important exception to this rule is that in appeals from child-support orders in the expedited support process, the court administrator’s service of notice of filing of the order does start the appeal time.

You do not need to wait until a party serves written notice of filing of an appealable order to file your appeal, but if any party serves a written notice of filing of the order, then the appeal period will end in 60 days. Service of a document may be made personally or by United States mail. The parties may agree to service by facsimile or other electronic means. If the appeal period is counted from a party’s service of notice of filing (as it is with most orders), and the notice of filing is served by mail, three days are added to the prescribed period, but the time must be counted from the date the notice was mailed, not the date of receipt. Therefore, in most types of civil cases, if any party serves written notice of filing of an appealable order by mail, the appeal period expires 63 days after the date the notice was mailed. If the appeal is not served and filed within that time, it cannot be considered by the court. Another appellate timing rule states that no order made before entry of judgment shall be appealable after the time to appeal the judgment has expired.