Probate Basics
If you are reading this article on Probate, you may be going through the many stresses that follow losing a loved one. We are here to help you learn your options in an understandable and friendly free consultation. Whether or not you will need to open a Probate depends on many factors.
DO WE NEED A PROBATE?
Signing an Estate Plan detailing what happens after death is something many people intend to do, but never get around to. As a result, many people die without leaving behind any of the legal documents that can help determine what happens to their assets.
Even when someone dies without a Will or Trust, it is possible they won’t need a probate. The main question is whether the person passed leaving a home, land or other real estate in their personal name. If the most recent deed recorded with the county states that the decedent is the current owner, a probate will be absolutely necessary. Other circumstances may also require a probate, like owning assets worth more than $100,000 in total in the decedent’s name. This might be a bank account or business held in the decedent’s name.
The good news is that often an entire Probate is not required. Sometimes opening a Probate and then asking a Judge to name a Personal Representative is sufficient. This can sometimes be accomplished in less than seven days. A Personal Representative can then sign a deed selling the property and the sale funds can then be distributed among the heirs of the decedent.
If the decedent did not leave behind a home or land, and if their remaining bank accounts and other assets have a total value of less than $100,000, often an Affidavit of Small Estate will suffice. The Utah Department of Motor Vehicles has their own form of this affidavit that an heir can sign to move vehicles out of the name of the decedent without a Probate. Banks and other businesses must accept this affidavit from an heir or risk having to pay three times the amount owed if they force the heirs to open a Probate when assets of the Estate total less than $100,000.
WHAT DO I NEED TO START A PROBATE?
As the Probate Court will normally name a Personal Representative to handle the Estate, someone needs to be ready to serve in this capacity. If the candidate for Personal Representative is a spouse or child of the decedent, the Court will often approve the application to serve without a hearing. A surviving spouse and children will each need to sign a consent to allow the appointment to happen faster without the hearing.
The Personal Representative will have the responsibility of contacting heirs and creditors, collecting and taking inventory of the estate, determining and paying taxes, selling property to pay taxes or debts, and distributing remaining proceeds to the heirs. The personal representative may also bring court claims on behalf of the estate.
If you feel overwhelmed by these responsibilities, keep in mind that the Personal Representative will normally retain an attorney, in the name of the Estate, to perform these duties on their behalf. The attorney’s fees will normally be paid out of the Estate, or the Personal Representative will be reimbursed by the Estate for payment of attorney fees and other necessary expenses.
After choosing a Personal Representative, it will also be necessary to obtain an original Death Certificate. Obtaining the certificate is normally a service provided by the mortuary that handles the burial.
If the person who will serve as Personal Representative can obtain a Death Certificate and gather names and addresses of the decedent’s spouse and children, this is normally enough to begin a Probate.
IS IT TOO LATE FOR A PROBATE?
When more than three years have passed after someone has died, Wills lose their validity and cannot be submitted to a court to determine heirs. In this case, instead of a Probate, I will help my clients request an Order Determining Heirs. The heirs will be chosen based on the current state laws in the year that the person died. Normally the spouse will receive the entire estate. If there is no surviving spouse, normally the children of the decedent will inherit the assets of the estate equally. This order can then be recorded with the county recorder to name the heirs as the current owners of a home or piece of property.
If someone is still alive and mentally competent, the best course of action is to sign an Estate Plan as soon as possible. Where there is land or a home involved, a Trust is normally the best option for avoiding probate in the future. If there is no land involved, something simple like a Will may be sufficient.
Please consider discussing your options with Ken at Prigmore Law. Our first appointment is a free consultation, and Ken’s relaxed manner will put you at ease. You will never be pressured to make a purchase, but you may end up saving thousands with Ken’s help. Give us a call today!
