FAQS: 50 Frequently asked questions and answers about Utah Probate


Articles related to Utah probate:  ■ Who inherits a person’s property after death?,    Beginner’s guide to the Utah probate process,    FAQS: 50 Frequently asked questions and answers about Utah probate,    14 Purposes of a Utah probate,   8 Ways to avoid probate in Utah,    The best way to avoid Utah probate Utah Probate Checklist – 10 questions to see if you need a probate,   Will contests, probate disputes and trust lawsuits.

FAQS (frequently asked questions) about Utah probate - orange line

Elderly woman asking questions about Utah Probate

Utah Probate practices and procedures are found in the Utah Code (Probate Code). These laws can be complicated and confusing. To help you more easily understand the process, we offer these Utah Probate FAQ’s, answers to 50 frequently asked Utah probate questions.

PART ONE:  General Questions about Utah Probate *

1. What is probate? *

Utah Probate is the court process of wrapping up the affairs of a person who has died, paying the debts, and transferring his or her property to others.
(Technically, the word “probate” refers to the process of proving wills, but the Utah Probate Code uses the term broadly, including all the affairs of a deceased person within its rules and jurisdiction, whether they died with a will or not.)

2. What is an estate? *

“Estate” is a noun referring to the collection of property owned by a person. Someone who dies leaves an “estate ” that is to say leaves a collection of property.

3. What is the purpose of a probate? *

Generally, a Utah probate is required whenever a person dies leaving property which needs a court order to transfer the property to heirs. Many other reasons may exist. Our Utah probate attorneys have identified fourteen purposes of a Utah probate. (See, “14 Purposes of a Utah Probate.”)

4. Do we need a Utah probate for someone who left a will? *

Yes, if the deceased left property which needs a court to pass it to heirs. A probate is required whether or not the dying person left a will. If the deceased left property which needs to pass to his or her heirs, a court will follow the will to determine the heirs.

5. Do we need a probate for someone who did not make a will? *

Yes, assuming the deceased left property which needs to pass to his or her heirs. A probate is required whether or not the dying person left a will. The heirs of a person who left no will are determined by the Utah laws of intestacy, found in sections 75-2-101, 75-2-102 and 75-2-103 of the Utah Probate Code. Probate for a person who leaves no will is officially called an “appointment action” in reference to the appointment of a Personal Representative.

6. Do I need a probate action if I have a Trust? *

Maybe. Trusts are a good way to avoid probate if all the property owned by the Settlor (creator of the trust) is put in the trust. If property was left out of the trust, a probate may be needed.
A probate court action may still be required if, 1) the deceased owns property outside the trust which needs a court order to transfer ownership, 2) a probate is needed to defend against legal actions filed by creditors, or 3) the deceased left a minor child who needs a guardian appointed (accomplished by a Petition for Appointment of Guardian in a Utah probate court).

7. Does all property of a deceased person need to be probated? *

No.  Many transfers of property at death occur automatically, without court involvement. Much or all of a person’s property may pass outside of probate. (See, “Who inherits a person’s property after death? “)

8. Can a will which was not written in Utah be probated in a Utah probate court? *

A.  Yes, if the maker of the will resided in Utah or had property in Utah at the time of his or her death. Wills made outside Utah are binding in Utah if they were valid in the state where they were signed.

9. How do I know if we need a probate? *

The best way to know if you need a probate is to ask an experienced Utah probate lawyer. Under Utah law, such legal advice can be given only by a licensed Utah lawyer. Our Utah probate attorneys offer free consultations to answer this important question for you. To help you determine if you need a probate, see, “14 purposes of a Utah probate.”

10. Is there a time limit for filing a probate? *

Yes. The Utah Probate Code requires a probate to be filed within three years after the death of the person. (See Utah Code section 75-3-107.) After that time, an action to declare heirs under the Utah laws of intestacy may be filed, but the will cannot be probated and followed.

11. Our family did not probate or follow my father’s will. Is there anything I can do? *

Maybe. If three years have not passed since the death, any heir, family member or creditor can file a probate action. If the failure to follow the will was “material,” meaning it would have made an important difference in the outcome, a Utah probate court can make orders to set things right. If more than three years have passed since the death, a court action to determine heirs under the Utah laws of intestacy may correct some of the unfairness, but the court will not probate the will. Anyone who conceals a will so it cannot be probated can be liable for all losses to the heirs.

12. Can we avoid a probate if the estate is small? *

Yes. If the probate estate does not exceed $100,000 (after subtracting liens and encumbrances, and motor vehicles registered in Utah), then the heirs may collect property of the decedent by signing an affidavit meeting the requirements of section 75-3-1201 of the Utah Code.

13. What are “letters testamentary” and where do I get them in Utah? *

“Letters testamentary” are written documents stamped and signed by the Utah District Court Clerk of the court where the probate was filed. You can get them by going to the office of the court clerk. They are official proof of a person’s appointment and authority as Personal Representative of the estate. They are often requested by out-of-state companies, insurance companies and government agencies which need proof that someone is authorized to act for the deceased.

14. What does it mean to die “intestate”? *

A person who dies without a will dies “intestate.” The deceased’s heirs are determined by the Utah laws of intestacy, statutes enacted by the Utah Legislature found in sections 75-2-101, 75-2-102 and 75-2-103 of the Utah Probate Code.

15. How long does a Utah probate take? *

In an emergency, we can file the documents and have a Personal Representative appointed in one week day if the courts are open. A non-emergency probate can be completed in as little as three weeks if all of the creditors are known, property does not need to be sold, and the family and heirs agree on everything. Probates will take much longer if the Personal Representative needs to advertise for heirs, if property needs to be sold, or if the heirs do not agree to everything. Disputes among the heirs can lengthen a probate by months or years.

16. How expensive is a probate? *

The simplest of probates can be completed for about $1,500. More complicated probates cost more. Because fees vary so much among lawyers, we suggest you get a written fee quote before you hire a lawyer.

17. How are attorneys fees calculated in a probate? *

Probate attorneys usually charge either an hourly rate or a set fee. Some will combine the two fee methods. At our law firm, we try our best to quote set fees so you know what your budget is. Many lawyers will work only on an hourly rate, usually between $150 to $300 per hour. Never hire a probate lawyer until you understand how you will be billed.

18. Can a lawyer take a percentage fee from the assets of the estate? *

A lawyer cannot charge a percentage fee based on the assets of the estate for filing and administering a Utah probate. Our Utah probate lawyers and other lawyers sometimes agree to percentage fees (no fee unless assets are collected) in probate related law suits to recover or collect assets of the estate, win wrongful death cases and other lawsuits including abuse and financial exploitation claims.

19. What other probate costs can we expect to pay in addition to attorneys fees? *

All probates require a court filing fee of $360 which is paid to the clerk of the court. If disputes arise, the parties may have to pay a mediator several hundred dollars to assist them in coming to an agreement.  If a notice to creditors needs to be published in local newspapers, those costs can be several hundred dollars. If real estate or other valuable property needs to be valued, appraisal fees may be needed. Accountant’s fees will be required in many probates. If lawsuits need to be filed or defended, additional filing fees will be incurred. Witness fees and even expert witness fees may be required in a probate contest or related law suit. Ask this question before you hire a lawyer.

20. Do I have a right to see the will or have a copy of the will of a family member? *

Yes, but only after the maker of the will dies. So long as the person who wrote the will is still alive, no one else is entitled to see it. When the maker dies, the person who has custody of the will must deliver it to the court or to a person who will probate the will with “reasonable promptness.” After a will is filed with the court it becomes a public record for all to see. Source: Utah Code §75-2-902.

21. Can Utah courts probate property in another state? *

Generally, no. Sometimes personal property can be collected. Usually, if a probate is needed for property outside of Utah, a probate will have to be filed in the state where the property is located. Sometimes, the other state will have a simplified system for an “ancillary probate” related to a probate already filed in Utah.

22. If we already have a probate in another state, do we need one in Utah? *

Yes, probably. If the decedent did not live in Utah at the time of death and has property in Utah, the procedure is simplified and is called an “ancillary probate” in Utah law.

23. What is the probate process in Utah? *

Probates in Utah proceed through three stages: The opening stage, the administration stage, and the closing stage. Each of these stages may be accomplished “informally” (no hearings required) if all interested persons agree, or “formally” (court hearings and court orders from a judge) if disputes arise. (See, “Beginner’s guide to Utah probate.”)

24. Do we need to have a lawyer to file a Utah probate? *

No. Anyone who is entitled to file a probate petition or application may do so without a lawyer.

25. What is an informal probate ? *

A Utah informal probate means that no court hearings will be held and no decisions will be made by a judge unless requested by an interested person. An informal process may not be used if a dispute exists over an important issue in the probate. An informal probate is started by an “application.” (See, “Beginner’s guide to Utah probate.”)

26. What is a probate application? *

In Utah probate law, an “application” means a written request to the registrar (court clerk) for an order of informal probate or the appointment of a Personal Representative. An informal probate process must be started with an application. (Utah Code §75-1-201)

27.  What are the advantages and disadvantages of choosing the Utah informal probate process? *

Cost is an important advantage of Utah informal probates – the informal process is usually much less expensive than a formal probate. This is the least expensive process of Utah probate because it avoids court hearings.
The disadvantage of informal probate is that disputes will need to be resolved without court help and without the finality and protection of court orders. The Personal Representative will lack the protection of having a court order to support his or her decisions.

28. What is a formal probate? *

Formal probate in Utah means that important decisions will be made by a probate judge who will decide disputed matters and issue court orders, usually after a court hearing. This is the most expensive process of Utah probate. A formal probate is started by a “Petition.” (See, “Beginner’s guide to Utah probate.”)

29. What is a probate petition? *

A petition is a written request to the court for an order and decision after notice to all interested people. A court hearing may be required. Formal probate proceedings must be started with a petition.

30. What are the advantages and disadvantages of choosing the Utah formal probate process? *

The advantage of a formal probate process is that important decisions will be made by an experienced Utah probate judge who will consider the facts of the case and decide disputes after hearing the evidence. Decisions will be followed and enforced by court orders which become final unless they are appealed. This is especially important in a final order approving all actions of the Personal Representative.
The disadvantage of following a formal process is the added cost of complying with additional court rules, more complicated procedures and court hearings.

31. What is Utah probate mediation? *

A “mediation” is an attempt to settle disputes in a probate by referring the case to a trained mediator (often a lawyer or retired judge) who meets with the parties and assists them in resolving their differences. Mediation is not binding and if the parties cannot agree, the case will continue in the legal process.
Courts in Salt Lake County refer almost all probate disputes to mediation. Courts in other counties may vary in their use of mediation.

32. Who is an “interested person” under Utah probate law? *

Interested persons have special rights in a Utah probate. An “interested person” includes heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property right in or claim against a trust estate or the estate of a decedent, ward, or protected person.” (Utah Code Ann. §75-1-201(24))  Businesses, trusts and other entities are persons under this definition.

33. What rights does an “interested person” have in Utah probate law? *

Any interested person is entitled to:
• receive notice of the proceedings of the estate
• object to decisions in estate matters
• file applications, petitions, and motions
• file claims against the assets of the estate
• contest the will or appointment of  the Personal Representative
• require the custodian of the last will to present it for probate

PART TWO: Questions about the Personal Representative in Utah Probates *

34. What is a Personal Representative? *

A “Personal Representative” is the Utah term for the person who administers the estate and executes the will. In other states, this may be called the “executor” or “administrator” of the estate. The term Personal Representative is a reminder that he or she stands in the shoes and represents the deceased in the process.

35. Who has the right to be a Personal Representative in Utah? *

The Personal Representative of a Utah probate estate must be 21 years of age or older and is fit to serve. Fitness to serve will be determined by the court, but generally requires a sound mind and a lack of conflicts with the estate which would impair his or her impartiality. If more than one person desires to serve, is fit and meets the age requirement, appointment is given in this order:
(a) the person nominated in the probated will
(b) the surviving spouse of the decedent who is a devisee (heir) of the decedent;
(c) other devisees of the decedent;
(d) the surviving spouse of the decedent;
(e) other heirs of the decedent;
(f) any creditor, if no other person is appointed with 45 days after death of the decedent.

36. Can an estate have more than one Personal Representative at the same time? *

Yes. The court may appoint two or more Personal Representatives for an estate. These are called “joint personal representatives or “co-personal representatives.”

37. What are the duties of a Utah personal representative? *

A Personal Representative of a Utah Probate is required to:
(a.) Gain control and possession of the assets of the estate. (Utah Code section 75-3-708)
(b.) Prepare an inventory and appraisement (valuation) of property owned by the decedent at the time of his death, and send it to interested persons who ask for it. (Utah Code section 75-3-705)
(c.) Report all financial matters of the probate to “interested persons” in the probate.
(d.) File tax returns and pay taxes on estate property. (Utah Code section 75-3-708)
(d.) Publish notice to creditors who may not be known
(e.) Pay the debts of and claims against the estate, including the costs of administration
(f.) Determine the distributions available to heirs.
(g.) Distribute the inheritances to the heirs.
(h.) Close the probate of the estate, either informally with an affidavit or formally with an order of the court.

37. If I am a personal representative, can I be required to pay the debts of the deceased from my own funds? *

No. The Personal Representative does not have to use his or her personal funds to pay creditors. However, if the Personal Representative fails to pay the creditors from available funds of the estate, and gives those funds to the heirs instead, the law allows creditors to sue the Personal Representative personally.

38. Does the Personal Representative have to tell the heirs what he or she is doing? *

Yes. Heirs are entitled to know what the Personal Representative is doing. He or she is required to file reports and share important information with all “interested persons” in the probate.

39. Can the Personal Representative delegate his or her power to someone else? *

No. The Personal Representative cannot give his or her power to someone else. A Personal Representative may hire and pay others to help administer the estate, but he or she may not delegate decision making to them.
Sometimes a Personal Representative will designate a family member as “assistant Personal Representative” and let them make decisions. This should not be done.

40. Who decides if property of the estate is to be sold or kept and passed to the heirs? *

Unless the will says otherwise, the Personal Representative makes the decision to either sell property and give the money to the heirs, or to give the heirs the property (called a “distribution in kind”). Heirs who feel the decision is wrong may petition the court for an order.

41. If I don’t agree with the decisions of the Personal Representative, is there anything I can do? *

Maybe. All interested persons in a probate have the right to request a hearing and court order on actions taken by the Personal Representative of the estate. If the judge disagrees with the actions, a court order may be issued to correct them.

42. Can the Personal Representative also be a creditor of the estate? *

Yes, so long as the Personal Representative acts impartially in dealing with other creditors and deals fairly with the heirs in making distributions.

43.  Can the Personal Representative be removed? *

Yes. Any interested person can petition the court for removal of the Personal Representative. The court can order removal “for cause” if:
• Removal would be “in the best interest of the estate.”
• The Personal representative “intentionally misrepresented” facts in gaining his appointment, or
If the Personal Representative has:
• disregarded an order of the court,
• become incapable of discharging the duties of his office,
• mismanaged the estate, or
• failed to perform any duty pertaining to the office.
(Utah Probate Code section 75-3-611.)

PART THREE: Questions about administration of the estate in Utah Probates

44. Does Utah probate law require a Personal Representative to give notice to creditors? *

No. Changes in the Utah Probate Code in 2013 made notice to the creditors optional. (Utah Probate Code, section 75-3-801) Many websites give incorrect information about this rule.

45. Why would a Personal Representative want to advertise for creditors if Utah law does not require it? *

Giving notice to the creditors shortens the time for the creditor to submit a claim. This is important in some Utah estates when the Personal Representative does not know what debts might exist. Publishing the public notice shortens the usual one year claim period (one year after death) to three months from the first published notice. This can shorten the time when the heirs get their money and the probate can be closed.

46. What risk is there if the Personal Representative does not give notice to the creditors? *

The Personal Representative has a problem if he or she distributes inheritances to the heirs and then a creditor files a claim before the one year statutory period. If this happens, the heirs will need to return their inheritances to pay the debt, or the Personal Representative can be required to pay the debt personally from his or her own funds.

47. How does a Utah Personal Representative publish notice to creditors of the decedent? *

The Personal Representative in a Utah Probate can give notice of the probate to the creditors in one of two ways:
1. By publishing notice once a week for three consecutive weeks in a newspaper of general circulation in the county of the probate. A creditor’s claim is barred three months after the first published notice unless the creditor files a written claim.
2.  By notification in a letter to a creditor to present claims within the 90 days if the first published notice in a newspaper, or within 60 days of the letter, whichever period is later.

48. Does the Personal Representative need to have real estate appraised before it can be sold? *

Yes, unless all interested persons agree to the sale without an appraisal. Many times, a Personal Representative will get a “drive by” evaluation from a real estate salesman or friend who knows. This can be risky. Our advice is to get a qualified appraisal on all real estate and a market valuation of all personal items worth more than $5,000. The Personal Representative can be personally liable to pay from his own funds money lost to the estate because he didn’t use commercially reasonable methods of valuing the property.

49. If a person dies without a will, who inherits the property? *

The Utah probate code names the heirs of people who die without a will. These are called the Utah “laws of intestacy.” The property will go to a spouse who is the only survivor. If the deceased is survived by a spouse and children who are all from the spouse, the spouse is the sole heir. If the deceased is survived by a spouse and at least one child who is not from the spouse, the spouse gets the first $75,000 and the half the balance, with half of the balance going to the children of the deceased. In this last case, the law requires a probate court to add in all other transfers which pass outside the probate (for example, in joint tenancies, joint accounts, or in a trust) for the purposes of making the calculations. If the deceased leaves neither a spouse nor a child, Utah intestacy laws define the next of kin – descendants (grandchildren, great-grandchildren) first, then parents, then brothers and sisters, then other descendants of the parents, then other relatives.

Contrary to a very common belief, the property is not forfeited to the state. Utah intestacy laws will find a relative (“next of kin,” however distantly related they may be.

50. If there is not enough money in the estate to pay all the creditors and heirs, who will lose their share? *

Utah probate law gives a priority for the use of money in a probate estate. We follow this order:

  • The costs of the probate, including attorneys fees and Personal Representative compensation are paid first.
  • All valid debts are paid second.
  • Heirs get their shares from whatever is left after payment of the debts.

Article by Jack Helgesen















Helgesen, Houtz & Jones $$(801) 544-5306