How Does Probate Work When There Is No Will
Many people are at a loss of what to do when someone dies and leaves property behind. Aside from dealing with the grief of the loss of a loved one, the family also deals with complex legal matters, such as the distribution and handling of properties and even debts left behind by the deceased.
Should you wish to ensure that your family will not go through a hard time when you die, experienced estate planning attorneys in Utah can guide and assist you on this matter.
This article will discuss the fundamental probate process and what happens when there is no will.
The probate process
The Uniform Probate Code is the standard rules and regulations used by some states, including Utah, in the US.
Probate is the processing of the last will and testament of the deceased. This process entails lawyers and court proceedings where the contents of the will and the decedent’s wishes on how the property will be distributed. This process also includes the payment to the decedent’s valid creditors. The duration of the probate process largely depends on the size of the estate. The larger the estate, the longer the probate process. In addition, the probate process could be expensive and may demand much of the time and effort of the inheritors.
The probate process is only necessary to properties and assets owned solely and held in the individual name of the deceased. Moreover, these assets do not have named beneficiaries and are not held in joint ownership with rights of survivorship. Such assets are called probate assets.
Non-probate assets do not require probate. Ownership of non-probate assets can be directly transferred without the need for probate proceedings. Examples of such assets are:
- Properties in joint ownership with right of survivorship
- Properties under Community Property Agreements (CPAs)
- Properties or assets that pass to another person under a contract where beneficiaries are already named, such as retirement accounts, payable-on-death accounts (PODs), life insurance policies, pension benefits, real estate held by a transfer-on-death deed, or beneficiary deed
- Any property in a living trust
The Probate Process When There’s A Will
The first step is validating the will. Under Utah laws, there are two ways to legitimize a will.
- The will is signed and acknowledged by the decedent in the presence of two witnesses, who must also sign the said will within a reasonable time after that; or
- The will, signed and acknowledged by the decedent and two witnesses, is notarized and accompanied by signed affidavits of the two witnesses declaring their knowledge of the existence and circumstances of the signing of the will.
The second way of legitimizing the will allows for a faster probate process. The notarization and the signed affidavits make the will “self-proving,” thereby eliminating the need for the probate court to contact the witnesses to accept the will as valid.
The state of Utah also implements a simplified probate process for smaller estates.
If you are set to inherit, it is best to contact a Utah St. George estate planning attorney to assist you. The probate process is a complicated legal matter. Get the most out of your inheritance by speaking with a probate attorney familiar with Utah inheritance laws.
Probate Process When There’s No Will
But, the probate process is different when the deceased is unable to prepare a will. Dying without a will is also known as dying “intestate.” This is not ideal because the deceased no longer controls who gets and how much one gets from their estate when they die.
Under Utah inheritance statutes, the court will follow the intestate succession laws when there is no will. The first step of the probate court is to designate a personal representative to handle the matters of the estate, including the distribution of property and payment of taxes and creditors.
Valuation of Intestate Estate
Before discussing the order of inheritance succession, bear in mind that in Utah, the value of the non-probate assets that go to a beneficiary will be subtracted to the beneficiary’s share of the intestate estate. This means that the transfer of non-probate assets is considered an advance on what one is legally allowed to inherit. Should the value of the non-probate assets exceed what the beneficiary is entitled to under the intestate succession laws, the said beneficiary will no longer inherit further from the estate.
Utah Intestate Succession Laws
The identification of heirs and their order of succession depends on the existence of a surviving spouse and descendants. Descendants are the decedent’s children, grandchildren, and great-grandchildren. The order of succession is as follows:
- Presence of a spouse and no descendants – The spouse inherits all of the intestate estates.
- Presence of a spouse and descendants from the decedent and the spouse – The spouse inherits all intestate estates.
- Presence of a spouse and descendants that are not descendants of the surviving spouse – The spouse inherits the first $75,000 and half of the remaining balance. The children will inherit the other half of the remaining balance.
- No spouse but with children – The children inherit equally among each other.
- No spouse, no children but with surviving parents – Parents inherit all of the intestate estates.
- No spouse, children, or surviving parents but with siblings – Siblings inherit all the intestate estates.
Qualification of Descendants
Under the Utah intestacy laws, all heirs must survive the decedent for at least 120 hours. Children born after the death of a parent may still inherit for as long as they also live for at least 120 hours.
Legally-adopted children will hold the same right as biological children. Moreover, the decedent’s children who are not children of the surviving spouse also have equal rights as long as paternity was recognized by the decedent or otherwise established under Utah law.
Grandchildren may also inherit if their parent, who is set to receive a share, is not alive.
Descendants who are not allowed to inherit are:
- Children adopted by another family
- Foster children and stepchildren that the decedent did not legally adopt
Hiring Probate Attorneys in Utah, St. George
The Utah Inheritance Laws are a complex myriad of laws, rules, and regulations. They could be daunting to a grieving family. At Boyack Christiansen, our probate and estate attorneys in Utah work with families in Utah to assist them in estate administration. Contact us today so we can ensure the efficient distribution of estate assets.