WE PROBATE UTAH
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Probate is generally thought of as a "scary" word, something that people want to avoid. However, probate isn't something to fear. In some instances, it may be a solution that you may want to consider.
Probate is the process of wrapping up the affairs of an estate. It starts with the filing of a petition in a court in the county where the decedent last resided.
Utah allows a probate to be either formal or informal. Informal probate is generally used when there isn't an expectation of the probate being contested, meaning someone will challenge the appointment of a personal representative. Learn more about the difference between a formal and informal probate.
Anybody can file for probate but only certain people may act as a personal represntative. The court uses a priority system when appointing the personal representative, as follows:
The person that is being appointed as the personal representative must also be at least 21 years old. If formal proceedings are requested, the person must be found suitable for the appointment.
There are instances when probate isn't necessary.
Probate must be filed when:
There are instances when probate can still be avoided depending ownership of the property in the estate.
If the property of an estate is less than $100,000 or doesn't contain any real estate, the property can be distributed via a small estate affidavit and without petitioning the court for a probate. This can save valuable time and money.
One of the purposes of probate is to pay off the debts of the estate. Debts do carry on after the passing of a loved one -- there is no avoidance. You may find that your loved one had many different forms of debt. The first thing to know about debt with an estate is that you are not personally liable for it, but there are exceptions to this.
If you shared funds or property with the decedent, such property may be subject to the debt. A creditor may request that you satisfy that debt using those funds. This may be the case where a husband and wife owned joint bank accounts or a home. Another instance may be in business situations. If property is not owned jointly, it may not be subject to the debt. Additional information needs to be considered.
Another situation where you will be personally liable for the estate's debt is when you made a personal guarantee to pay the debt.
One last situation to consider is when you receive property from the estate without first paying the debts. Creditors have to be paid first. If they are not, they can ask a court to claw back any distribution improperly made. They might also ask the court to hold the personal representative liable for having made those distributions.
If the estate has debt, speaking with an attorney about the debt can save many problems.
Maybe. It depends on how proactive the creditors are. Probate starts a clock when creditors have to make themselves known to the estate. If they do not within a prescribed time period, they are barred from seeking recovery for the debt. If you are unsure whether the estate has debt, going through probate may actually reduce the amount of debt owed.
Utah law creates two methods for starting the creditors clock. First, simply file for probate. Creditors have one year from the time that probate starts to make themselves known. Second, after probate starts, publish a notice of the probate in a local newspaper for three consecutive weeks. By doing this, the time period for creditors to make themselves known is shortened down to three months after the first newspaper publication.
Waiting the requisite amount of time may not stop a creditors ability to collect against the estate. Some personal representatives may make the mistake that if a creditor doesn't file with the court or the estate that the debt becomes discharged automatically. If the estate has knowledge of the debt or should have knowledge of the debt, it remaines the estate's obligation. All court actions and judgments are automatically known to the estate. Other public filings are also automatically known to the estate (such as a mortgage or liens). An attorney can help you search for these to keep you out of trouble.
Properly estate planning can help avoid the hassle of going through the estate process.
Unfortunately, if the value of the estate of your loved one exceeds $100,000 or has real estate property, a probate will be required. However, there are times when property might have been accessible to the decedent when he or she was alove but doesn't belong to the estate. We can help you determine if this is the case.
The probate process in Utah starts with petitioning a district court in the county where the decedent resided at death. This can be either a formal or informal process. In some instances, petitioning for probate may not even be necessary based on the individual's assets at the time of death.
We can advise you on what process you should consider in filing for probate and handle all the legal details to make the probate process simple.
When dealing with a loved one's estate, debt may be an issue. While creditors can have a claim on the property contained in the estate, we can help advise you on minimizing the debt or canceling it all together.