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Olsen Skoubye & Nielson, LLC
999 Murray Holladay Road, Suite 200
Salt Lake City, Utah 84117
(801) 365-1030 (phone)
(801) 365-1031 (Fax)
info@osnlaw.com
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Probate
Probate:
Probate, simply put, is the process set up by the legislature and carried out by the court which provides for the transfer and management of the property of a deceased, incapacitated, or minor person. Probate becomes necessary when an owner of property is unable to manage their own assets, such as when a person dies, becomes incapacitated, or is a minor. In such circumstances, unless appropriate planning is done in advance, the court will be required to appoint someone with legal capacity to act in the place of the deceased, incapacitated, or minor person.
The word "probate" often sends a chill up people's spines. There is no need for this. The probate process in Utah has been improved and should not be feared. Notwithstanding the improvements to the system under Utah law, probate still poses some significant issues that most would likely prefer to avoid. In addition, probates are done by jurisdiction. So even though a probate in Utah alone might pose no significant problem, probates might occur in multiple jurisdictions depending on where assets are located.
Probate at Death:
In a Probate at death, a petition is filed with the probate court for the appointment of a Personal Representative (formerly called an executor) and the admission of a will (if there is one.) Notice is given to interested parties. If no objection is made to the petition, the individual is appointed as the Personal Representative of the deceased person and the will admitted to probate. Under the direction of the probate court, the Personal Representative then gathers the assets, inventories them, pays creditors, and distributes the assets to the appropriate parties.
Probate on Incapacity:
Conservatorship is often referred to as "The Living Probate": When a person loses the ability to manage their own financial affairs through incapacity, some system is required to provide for the payment of their bills and management of their assets.
When a person becomes incapacitated, a relative or friend may petition the probate court for appointment as conservator, and give notice to interested parties. If no objection is made to the petition, the appointment is made and the conservator gathers the assets of the person, inventories them, and manages them for the benefit of the incapacitated person under the direction of the court. Annually the conservator must account for the use of the assets to the court.
Probate for Minority:
Minors are "legally incapacitated" and therefore unable to transfer or manage property held in their own names. Therefore, when a minor receives assets, either through gift or inheritance, a conservatorship may be required to manage their affairs. This conservatorship is basically the same as that for incapacitated persons, but will end when the minor reaches age 18 in most cases..
People often believe that a parent can serve in this capacity without a court order, however, this is incorrect.
Problems with Probate:
* Probate Takes Time -- a minimum four months for probates at death, but usually much longer.
* Probate Costs Money:
o Attorney fees
o Personal Representatives fees
o Court costs
o Legal battles
o Potential for multiple probates - in multiple states
* Probate Causes a Loss of Privacy -- All court filings are a matter of public record:
o Greater potential for contests due to publication.
o Business information may become public.
o Family may be exposed to solicitation.
* Probate Can Be Emotionally Taxing on Family Members -- it takes much longer for final resolution to be achieved than through other methods
* Probate May Cause a Loss of Control - probate court approval may be required to deal with the property of the deceased in certain circumstances.
* Probate has Potential for abuses -- Parties interested in a share of the estate may fight over appointment to control your assets or may contest your estate plan in hopes of forcing a settlement.
Advantages of Probate:
* Recent changes in Utah law have all but eliminated any advantage in settling estates through probate, rather than through a living trust.