We are often asked “What do I do after a loved one dies?” Even with a will or trust in place, the estate or living trust must be settled. “Estate settlement” is a broad term that describes the process of collecting assets of a deceased person, accounting for such assets, paying debts and expenses, and then distributing those assets according to a will, a trust, or according to applicable law. Here are answers to some common questions about probate in Utah:
Probate is the legal process of settling the affairs of a person who has died (decedent), including asking the court to determine if the decedent had a valid will, or if there is no will (intestate) to determine the heirs of the decedent, and to appoint a personal representative of the decedent’s estate. The decedent’s estate is all real property and personal property owned to the decedent as of the date of death, along with any debts or obligations owed by the decedent.
The probate process may include gathering assets, paying debts, notifying heirs and creditors, filing and paying taxes, selling estate assets, preparing and providing accountings, petitioning the court to close the estate, and distributing property to the decedent’s successors.
Because of the complexity that can arise in even a small estate, we recommend you hire an attorney experienced with Utah probate law.
In Utah, probate is necessary when either of these statements is true:
- (1) The decedent’s estate has any real property (land, house, condominium, mineral rights) regardless of value.
- (2) The decedent’s estate has assets (other than land, and not including cars) exceeding $100,000 in value.
Benefits that are paid directly to beneficiaries (like life insurance or retirement benefits) are not included in the $100,000 amount. If property (regardless of total value) is owned by a trust or owned in joint tenancy, probate is not necessary. Even if probate is unnecessary, there are some circumstances when it may be advantageous to file a probate, such as to more effectively deal with creditors or in certain family situations.
Example A: Joe dies domiciled in Utah in 2018 with a bank account in his name with $20,000, and a timeshare in Park City, Utah worth $15,000. A probate must be filed in Utah for Joe’s estate because the timeshare is real property.
Example B: Shelly dies domiciled in Utah in 2018 with a bank account in her name with $20,000 and a stock certificate in her name worth $88,000. A probate must be filed for Shelly’s estate since the personal property exceeds $100,000 in value.
The estate settlement process may involve the following:
- Informal probate
- Formal probate
- Notice to creditors
- Trust administration
- Preparation and filing of a federal estate tax return – IRS Form 706
- Small estate proceeding
- Affidavits for collection of personal property
- Estate valuation and collection of benefits
- Estate and trust asset transfers
- Estate and trust accounting
- Real estate transfers
- Handling closely-held business interests
- Preparation and filing of estate or trust income tax returns – IRS Form 1041
- Collection of retirement benefits (IRAs, 401(k) plans, pension plans, etc.)
- Receipt and release forms from estate or trust beneficiaries
- Formal estate closing and accounting with the probate court