Which Of The Following Items Will Pass Through Probate?

Learn which items will pass through probate in Utah. Understand probate laws, which assets are affected, and how to navigate the process efficiently. Read more now!

Which Of The Following Items Will Pass Through Probate?

Understanding the probate process can be daunting, especially with all the legal terminology that goes with it. Whether you’re managing a loved one’s assets or planning your estate, it’s vital to know which items will pass through probate and which won’t. We’re diving deep into Utah’s probate laws to help you navigate this complex subject with ease and confidence.

What is Probate?

Probate is a legal process through which someone’s assets are distributed after they pass away. It includes validating the deceased person’s will, paying off debts, and distributing the remaining assets to rightful heirs. The probate process ensures that all legal and financial affairs are settled properly and according to the law.

In Utah, the probate process is governed by the Utah Uniform Probate Code. This code outlines specific procedures to ensure the efficient and fair distribution of a deceased person’s estate. Probate can be a lengthy and complex process, but understanding it can help you manage it more effectively.

The Role of the Utah Courts

Utah’s District Courts handle probate cases. These courts are located in various cities and counties, like the Third District Court in Salt Lake County, which specifically focuses on probate matters. It’s essential to understand which court will be responsible for overseeing the probate process because this dictates the required procedures and timelines.

The Utah Code Ann. § 75–3–101 specifies the jurisdiction of these courts, and this is the starting point when you have to file for probate. Filing in the correct district ensures that your case is handled correctly and efficiently.

Items That Will Pass Through Probate

Let’s get to the heart of the matter: which items will go through probate? Generally, probate assets are those solely in the deceased person’s name and without a named beneficiary. Here are common categories of assets that will pass through probate:

1. Real Estate

Real estate owned solely by the deceased will pass through probate. This includes homes, rental properties, or any land owned without joint tenancy, co-ownership with rights of survivorship, or listed beneficiary. For instance, if your parent owned a home in Provo, Utah, solely in their name, this property would need to go through probate.

2. Personal Property

Personal property, such as jewelry, cars, appliances, and collectibles solely owned by the deceased, passes through probate. These items must be inventoried, appraised, and distributed according to the will or Utah’s intestacy laws if there is no will.

3. Bank Accounts

Bank accounts solely in the deceased’s name, with no payable-on-death (POD) designation, will pass through probate. It’s crucial to check whether the deceased designated a beneficiary, as this can alter whether the account goes through probate.

4. Stocks and Bonds

Stocks, bonds, and other investment accounts solely owned by the deceased, and without a transfer-on-death (TOD) designation, will go through probate. Always verify if there are named beneficiaries, as this can exempt these accounts from probate.

5. Vehicles

Vehicles, including cars, boats, and recreational vehicles, solely in the deceased person’s name must pass through probate. You will need to check titles and registrations to determine if the deceased co-owned the vehicles.

6. Business Interests

Any business interests solely owned by the deceased, such as shares in a corporation or membership in an LLC, will pass through probate. This can be complex and often requires professional legal and financial assistance to manage properly.

7. Intellectual Property

Intellectual property, such as copyrights, patents, or trademarks, solely owned by the deceased, must go through probate. These assets are often valuable and may need professional evaluation.

Non-Probate Assets

Not all assets go through probate. Understanding this distinction can save time, money, and emotional strain. Here are some items that generally do not need to pass through probate:

Jointly Owned Assets

Assets jointly owned with rights of survivorship do not pass through probate. For example, if you and your spouse jointly own a home in Ogden, Utah, upon one’s passing, the property automatically transfers to the surviving spouse.

Beneficiary Designations

Assets with named beneficiaries also avoid probate. This includes life insurance policies, retirement accounts like IRAs and 401(k)s, and certain bank accounts with POD or TOD designations. These assets go directly to the named beneficiaries upon presenting the necessary documentation, often bypassing court involvement.

Trust Assets

Assets placed in a living trust do not go through probate. When you create a trust, you’re essentially transferring ownership of your assets to the trust. This means the assets are controlled by the trust and distributed according to its terms without the need for probate. Setting up a living trust can be a smart way to manage and distribute your estate efficiently.

The Probate Process in Utah

Understanding what passes through probate is vital, but grasping the probate process itself is equally crucial. Here’s a simplified version of the steps you’ll go through in Utah:

Step 1: Filing the Petition

The first step is filing a petition for probate with the appropriate Utah District Court. This is typically done in the county where the deceased resided, such as Salt Lake County.

Step 2: Inventory and Appraisal

Once the court appoints a personal representative (executor), this individual is responsible for cataloging and appraising all probate assets. This involves listing all real estate, personal property, bank accounts, stocks, and other assets.

Step 3: Paying Debts and Taxes

The personal representative must pay all debts and taxes owed by the estate. This includes settling final medical bills, credit card debts, and estate or income taxes. In Utah, some debts must be paid before distributing the estate, including administrative costs and reasonable funeral expenses.

Step 4: Distribution of Assets

After debts and taxes are paid, the remaining assets are distributed according to the will. If there is no will, the Utah intestacy laws will dictate asset distribution. This ensures that all entitled heirs receive their share of the estate.

Step 5: Closing the Estate

Once all assets are distributed, and all financial obligations are met, the personal representative files a final account and petition for discharge with the court. Once approved, this closes the probate process.

Protecting Your Rights and Managing Disputes

Probate can be fraught with potential disputes, especially among family members. Understanding the laws that protect your rights and knowing how to manage conflicts is critical.

Will Contests

A will contest is a legal challenge to the validity of a will. Grounds for contesting a will in Utah can include:

• Lack of testamentary capacity: The deceased was not mentally competent at the time of making the will.
• Undue influence: The will was written under pressure or influence by another party.
• Fraud or forgery: The will was fraudulently created or altered.

Rights of Heirs and Beneficiaries

Heirs and beneficiaries have certain rights protected by the Utah Code. For example, Utah Code Ann. § 75–3–703 details the rights and duties of personal representatives and ensures that beneficiaries receive proper notice and their due share of the estate.

Professional Assistance

Hiring a professional probate lawyer can be invaluable in navigating disputes and ensuring your rights are protected throughout the probate process. For help, you can contact a probate lawyer.

Common Misconceptions

Probate is often misunderstood, leading to misconceptions that can cause unnecessary stress and errors. Let’s debunk some common myths:

Myth 1: “All Assets Go Through Probate”

Not all assets go through probate. As discussed, jointly owned assets, assets with beneficiary designations, and trust assets generally bypass probate.

Myth 2: “Probate is Always Long and Expensive”

While probate can be lengthy and costly, it doesn’t have to be. Simple estates with clear wills or proper estate planning can go through probate relatively quickly and affordably.

Myth 3: “Having a Will Avoids Probate”

A will directs how assets should be distributed but does not avoid probate. The will must still be validated, and the assets must go through the probate process unless they are non-probate assets.

Myth 4: “Only Large Estates Need Probate”

Even small estates may require probate. However, Utah offers a simplified probate procedure for smaller estates, defined as those with less than $100,000 in assets and no real estate.

Myth 5: “Probate Means Family Conflict”

While probate can sometimes lead to disputes, proper estate planning and clear, well-communicated intentions can help minimize conflicts among heirs and beneficiaries.

Practical Applications

Understanding probate isn’t just about legal compliance; it’s about making informed decisions that affect your and your loved ones’ future.

Estate Planning

Effective estate planning can significantly reduce the burden of probate. Consider creating a living trust, designating beneficiaries where possible, and regularly reviewing your estate plan to reflect life changes.

Addressing Debts

Understanding that debts must be paid before asset distribution can help set realistic expectations. Communicate with creditors early in the probate process to avoid surprises and manage liabilities effectively.

Communication

Open communication with family members about your estate plan can prevent conflicts and ensure everyone understands your wishes. Consider having regular family meetings to discuss these matters.

FAQs

1. What happens if someone dies without a will in Utah?

If someone dies without a will, they are considered to have died intestate. The Utah intestacy laws govern the distribution of their estate. Typically, the estate is distributed to the closest surviving relatives, such as a spouse, children, or parents, according to a predefined hierarchy.

2. How long does the probate process take in Utah?

The length of the probate process can vary widely. For uncomplicated estates, it can take a few months; for more complex or contested estates, it can take a year or longer. Factors influencing the timeline include estate size, the clarity of the will, and any disputes among heirs.

3. Can probate be avoided?

Yes, some strategies can help avoid probate, such as creating a living trust, designating beneficiaries for certain assets, and holding property jointly. These measures can help streamline the transfer of assets and reduce the need for probate.

4. What is a personal representative?

A personal representative, also known as an executor, is the individual appointed by the court to administer the estate. Their responsibilities include inventorying assets, paying debts and taxes, and distributing the remaining assets according to the will or intestacy laws.

5. What are the probate filing fees in Utah?

Probate filing fees in Utah can vary based on the size and complexity of the estate. Generally, you can expect to pay a few hundred dollars in filing fees, but there may be additional costs for appraisals, legal fees, and other administrative expenses.

Conclusion

Understanding which items will pass through probate is essential for effective estate management. By knowing what to expect and planning appropriately, you can help ensure a smoother probate process. If you’re unsure about any aspect of probate or estate planning, it’s always a good idea to consult with a professional.

To speak with a probate lawyer, call attorney Jeremy Eveland at (801) 613–1472.

Hopefully, this guide has provided you with valuable insights into the probate process in Utah. If you found this article helpful, please clap, leave a comment, and subscribe to our Medium newsletter for updates. Your engagement helps us bring you more informative content like this. Thank you for reading! Jeremy Eveland 8833 S Redwood Rd West Jordan Utah 84088 (801) 613–1472

The information contained in this article is for information purposes only and is not legal advice. For legal advice, hire a competent lawyer in your jurisdiction.