Beginner’s guide to the Utah probate process

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Begginner's guide to the Utah probate process - orange line

Unless you work for a law firm or the court system, you probably know very little about the Utah probate system and process. This guide is for you:

Utah Probate Process

Probate is the Utah court process for wrapping up the affairs of a person who has died. The legal process for doing this varies greatly from state to state. In 1977, Utah adopted the Utah Uniform Probate Code which is found in Sections 75-1-101 through 75-8-101 of the Utah Code. These laws control the Utah probate process.

Your initial decision. When a person dies, the family and heirs will need to decide if a probate is necessary.(Our probate attorneys offer a free consultation to help you in this decision). In general, a probate will be necessary whenever the deceased left property in his or her name which cannot be passed on to the next generation heirs without a court order. (To see if you really need a probate, read Utah Probate Checklist: 10 questions to see if you need a probate14 purposes of a Utah probate and 8 ways to avoid probate in Utah.) Our professionals offer you a free consultation to see if you can avoid a probate).

If a probate is necessary, the illustration above shows you the process.

Utah probates progress through three stages:

  • Stage 1: Opening the probate
  • Stage 2: Administering the probate
  • Stage 3: Closing the probate

In each of these three stages of a Utah probate, the participants may proceed INFORMALLY or FORMALLY. These choices allow the parties to proceed by agreement (INFORMAL PROBATE) when they can agree,or to ask a judge to decide issues (FORMAL PROBATE) when they cannot agree. Knowing whether to follow the Utah INFORMAL PROBATE process or FORMAL PROBATE process is key to saving money and time in the probate process. Our Utah probate attorneys are experts in following this often confusing court process.

KEY POINT: A Utah FORMAL PROBATE process is required whenever the court needs to resolve disputes.

STAGE 1 – Choices at the opening stage of the probate:

The opening stage of a Utah probate requires decisions on appointment of the “Personal Representative” (“executor” in some states) and a determination that the will is valid, if one exists.

  • Opening the probate INFORMALLY with an Application to the court. In many families, probates can be done by agreement of everyone involved. If this is the case, the probate can begin with the INFORMAL PROBATE process. If the deceased left a will, a Utah informal probate begins by filing an Application for Probate in the Utah District Court in the county where the deceased lived.  If no will exists, a Utah informal probate begins by filing an Application for Appointment of Personal Representative.  In either case, the court will appoint the person agreed upon as the Personal Representative. If a dispute arises on anything, a formal hearing will be required.
  • Opening the probate FORMALLY with a Petition to the court.  A FORMAL PROBATE process is required whenever the court needs to resolve disputes. If it appears that any interested person will dispute the appointment of the Personal Representative or the will, the probate court will require one or more formal court hearings to resolve the dispute. If the deceased left a will, a Utah formal probate begins by filing a Petition for Probate in the Utah District Court in the county where the deceased lived.  If no will exists, a Utah formal probate begins by filing a Petition for Appointment of Personal Representative. After the Petition is filed, the court will schedule a hearing to see what disputes exist. If the parties cannot resolve the disputes themselves, the judge will decide them. If disputes exist in the opening stage of the probate, another formal hearing may be required for the judge to hear testimony, see the evidence and consider legal arguments.

Stage 1 of a Utah probate ends when a Personal Representative is appointed and the court accepts the will as valid, if a will exists.

STAGE 2 – Choices in Administering the estate:

The Administration stage of a Utah probate requires the Personal Representative to gather information and records, make an inventory of the assets, give notice to creditors, pay debts, sell assets if necessary, and identify the heirs.

  • Administering the probate INFORMALLY without court hearings and decisions.  If neither family members nor creditors object to actions and decisions by the Personal Representative over the issues of administration of the estate, the Personal Representative can proceed informally without court hearings and decisions from the judge.
  • Administering the probate FORMALLY with a Petition or Motion to the court.  A Utah FORMAL PROBATE process is required whenever the court needs to resolve disputes. If a dispute arises, any interested person (family, heirs, or creditors) can file a Petition or Motion for a court hearing, decision or court order. Disputes which cannot be resolved between the participants may require the judge to make decisions and issue orders. The judge may rule on a disputed issue after reading legal briefs from the parties, or the judge may schedule a hearing to listen to testimony, review evidence and consider legal arguments.

Stage 2, the Administration stage of a Utah probate, ends when all the creditors have been paid, the heirs have been named, and their inheritances have been calculated.

STAGE 3 – Choices at the Closing stage of the probate:

The Closing Stage of a Utah probate requires the Personal Representative to distribute the balance of the assets of the estate, after paying costs of the probate and paying the debts, to the heirs. The Personal Representative must also prepare a final accounting showing all financial matters in the administration of the estate.

  • Closing the probate INFORMALLY by filing a closing statement. If no disputes exist over the administration of the estate, the Personal Representative may distribute the remaining assets to the heirs and file a closing statement as provided in Utah Code section 75-3-1204. Any interested person may object to the closing statement by filing a Petition or Motion. If no proceedings involving the personal representative are pending in the court one year after the closing statement is filed, the appointment of the Personal Representative terminates.
  • Closing the probate FORMALLY with a Petition to the court.   A Utah FORMAL PROBATE process is required whenever the court needs to resolve disputes. If a dispute exists over the final accounting or any of the acts and decisions of the Personal Representative after the administration of the estate, the Personal Representative and any other interested person (family, heirs, or creditors) can file a Petition for a court hearing, decision or court order. The judge may rule on a disputed issue after reading legal briefs from the parties, or the judge may schedule a hearing to listen to tesimony, see the evidence and consider legal arguments. If the court rules and agrees with the actions of the Personal Representative and the final accounting, it will issue an order approving the Petition and releasing the Personal Representative from all further obligations.  If the court does not agree, it may order the Personal Representative to correct all errors and remedy mistakes. Anyone who disagrees with an order closing the estate may appeal the decision to a Utah appellate court.

Stage 3, the Closing stage of a Utah probate, ends when the Personal Representative is released (discharged), if no appeals are pending.

By Jack Helgesen, attorney

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