Why I Might Want to Choose Probate in Utah

June 2, 2015 - Posted by: admin - In category:

taxes - No Responses

Probate can sometimes be the best option for you and/or your loved ones.

We have spent a good deal of time and text over the past several posts talking about the potential negatives of the probate process in Utah (and in most other states) and those potential problems will always be present in any court proceeding. However, as we say so very often, none of this is “one size fits all” stuff and what is right and proper for one person and their situation is often not best for another person and scenario. While it is true that a great many of our clients choose to avoid probate through the proper use of living trusts, beneficiary designations and other means, there are times when individuals elect the probate process. Why would a person do this? Great question, thanks for asking!

One reason why someone might choose to have their estate go through the probate process is that such a person does not feel comfortable with available candidates to serve as trustee, in the event that they were to elect to have a trust. When it comes to estate planning with trusts, the concept of “trust” (pun intended) is VERY important. Said another way, if you are going to set up a trust with the desire to avoid court proceedings (namely probate), then you will need to have an individual, a group of individuals or a corporate trustee, that you feel comfortable with now and that you feel certain will comply with the terms of your trust agreement later. While it is true that a trustee who is not complying with the terms of a trust agreement faces personal liability and perhaps even criminal charges, the reality is that catching such a trustee in the act of wrongdoing can prove to be a challenge and in many instances that trustee is largely (or entirely) left to their own affairs and expected to (and in reality does) perform duties as trustee without the active supervision of any other person or institution. While it is possible to build in various safeguards, checks and balances and other controls to monitor and protect against trustee abuse and misdeed, we always tell our clients that in choosing their trustees, they must choose individuals or entities they would trust to do the right thing when nobody else is looking.

Another reason why individuals sometimes choose probate as part of their planning is the very reason why a great many others seek to avoid the same–namely, the public nature of probate matters. While I abhor the idea of my personal matters becoming part of the public record and many others feel the same way, there are people who, for various reason unique to them (and sometimes known only to them), desire to have total transparency with regard to settlement of their estate. None of these things are necessarily right or wrong in and of themselves. Instead, as with so many other aspects of estate planning, these are decisions that should be made after you have had an opportunity to become educated on the myths and realities related to the same.

To summarize, oversight and transparency are two key reasons why individuals may elect to participate in the probate process.

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