Probate: Taking the Fear Out of the Future

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. 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 individual who is unable to act in her or his name.

For most, the word “probate” carries with it a less-than-positive connotation. But what many don’t know is that Utah has taken a series of steps over the years to smooth the process over as much as possible for all those involved. That said, probate can still take more time, cost more money, and involve more hassle than plaining to avoid probate in the first place.  In addition, probates are done state by state. So even though a probate in Utah alone might pose no significant problem, probates might occur in multiple states if assets are owned in multiple states.

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” and comes into play when a person loses the ability to manage his or her own financial affairs through incapacity. At this point, some system is required to provide for the payment of the person’s bills and management of his or her 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 a Minority
Minors are “legally incapacitated” and therefore unable to transfer or manage property held in their own names. When a minor receives assets, either through gift or inheritance, a conservatorship may be required to manage their affairs. Contrary to popular belief, a parent cannot serve in this capacity without a court order.

When it comes down to it, this conservatorship is basically the same as that for incapacitated persons, except it typically comes to an end on the minor’s 18th birthday.

Problems with Probate
– Probate Takes Time — a minimum of four months for probates at death, but usually much longer
– Probate Costs Money

  • Attorney fees
  • Personal Representatives fees
  • Court costs
  • Legal battles

– Potential for Multiple Probates – in multiple states
– Probate Causes a Loss of Privacy — All court filings are a matter of public record:

  • Greater potential for contests due to publication
  • Business information may become public
  • 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.

To make sure your estate avoids probate, contact us directly at the number listed below.

Skoubye, Nielson, Johansen Attorneys Salt Lake City Utah

Jeff Skoubye