How to know if you need to file a probate in Utah
We are frequently asked, “Do I need to file a probate?”
To begin, you should consider the definition of “probate.” 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. (See link)
Because the scope of Utah probate actions is broad, the question of whether a probate is needed is more complicated than most people think. To help, we offer these sixteen questions. If you need more advice, you should ask a Utah probate lawyer. Some lawyers (including those with this law firm) offer free consultations to answer this important question for you.
If you answer “YES” to any of these questions, you likely will need a probate action.
1. Did the deceased own real property which did not automatically transfer to others on his or her death? (See definition of property, automatic transfers on death.)
2. Did the deceased own property, other than motor vehicles, worth $100,000 or more which did not automatically transfer to others on his or her death?
3. If the deceased had a trust, was property left outside the trust which did not automatically transfer to others on his or her death?
4. Has anyone notified a family member that “letters testamentary,” “letters of administration,” “letters of appointment” or legal authority will be needed to collect property belonging to the deceased?
5. Will the estate need to defend against legal actions filed by creditors of the deceased?
6. Did the deceased leave a minor child who has no other parent or guardian? If so, each minor child needs a guardian appointed (accomplished by a Petition for Appointment of Guardian in a Utah probate court).
7. Does a dispute exist over who is entitled to personal property of the decedent? (see personal property.)
8. Does the family of the deceased want to publish notice to creditors to establish a cut off time period to present their claims? (Without a probate, creditors have claims against the people who received the property of the estate.)
9. Will court action be needed to determine what property was owned by the decedent?
10. Did the decedent have legal claims which need to be filed against someone? (Such as claims for injury, collection of debts, recovery of property, abuse, financial exploitation, fraud, etc.)
11. Is there a dispute over the burial, cremation or disposition of the remains of the deceased which cannot be resolved without court action?
12. Will a third-party special needs trust be set up for a disabled spouse (this must be done by the personal representative)?
13. Do federal income tax or estate tax laws require the appointment of a personal representative to make an important tax election? (Your tax accountant can explain this.)
14. Does a Trust created by the deceased require the Personal Representative to make an election or exercise a power in the Trust?
15. Do any of the people who received the decedent's personal property want to be discharged from liability to the other heirs after the property is distributed?
16. Does any person who managed the affairs of the deceased want a court order to protect him or her from accusations of wrong doing by heirs or creditors of the deceased?
If the answer is YES to one of these questions, you probably will need a probate court action.