What is Probate in Utah? (estate planning basics)

May 16, 2015 - Posted by: admin - In category:

taxes - No Responses

Probate is a word that is commonly heard, but rarely understood.

What is the legal process, mandated and governed by applicable state law (Utah state law in this case), through which the final affairs of a deceased person are administered? Probate is the answer to that question.

Under the Utah Uniform Probate Code (see Utah Code Title 75), the term probate is applicable in situations both where a deceased person left a validly executed Will and also where a deceased person did NOT leave a valid Will.Therefore, among the misconceptions about probate is the idea that it is applicable only where a person has left a Will. At least in Utah, that is NOT the case and the same is true in most states. But again, all questions related to probate are dependent on the laws of the applicable state. There are also many people who mistakenly believe that if a person has left a Will, that means that probate is not needed. Such persons likely have confused the possible benefits of a Living Trust (which can avoid probate) with that of a Will. In truth, the general rule is that most Wills are required to be submitted to court for the probate process.

Are all probate proceedings awful, nasty, expensive and decade-long affairs? No, absolutely not. The vast majority of all probates in Utah are relatively straight forward, reasonably priced and done within 6 to 18 months. That being said, it is possible for a probate proceeding to become quite messy, very expensive and to last for several years. You must remember that probate is a public court proceeding (yes, public) and as with all court proceedings, there is the chance that persons or circumstances cause things to take longer than expected and the longer the process takes, generally the more expensive it becomes. On the point of publicity, you must understand that if you leave a Will, which is then required to be submitted to probate, that Will is then a public record that is accessible by any and all people. Often this public nature of probate is enough, by itself, to motivate people to take steps necessary to avoid probate.

Is it possible to avoid probate? Yes. Conceptually, probate avoidance is rather easy. In practice, avoiding probate takes carefully planning so as to ensure that a person’s assets are all arranged in the legal and proper manner so as to achieve the objectives of such person with regard to asset distribution and probate avoidance. Much of this can be accomplished through the proper use of a Living Trust (i.e. a trust created during the life of a person), into which such assets are conveyed. Correct beneficiary designations on life insurance, retirement accounts and other like assets can also be important in the aim of probate avoidance.

If you die with an asset in your name, that asset will be part of your estate and will be subject to probate upon your death. On the other hand, if your life insurance and retirement accounts name your spouse and children and beneficiaries of the same and if your Living Trust owns your real estate and other assets upon your death, then your probate attorney will have nothing to do upon your death, as probate will not then be required.

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