what is probate?
In general, probate is the legal process for making sure that the property of a deceased person (the decedent) is collected and preserved; the decedent's debts and taxes are paid; and the remaining property is distributed to the beneficiaries designated in the decedent's last will or, if the decedent died without a valid will, to the decedent's lawful heirs. The person who does this is called the personal representative, sometimes known as the executor or administrator.
In Utah there are three types of probates for both wills and intestate estates (without a will): (1) Small Estates - those estates with probate assets under $100,000.00, (2) Informal Probate - generally just a paperwork process without the need for hearings before a judge and without contested issues, and (3) Formal Probate - this type generally involves invalid, questionable or contested wills. Both informal and formal probates must be open with the court for about 6 months, but full administration of the estate may take much longer.
Initially, the necessary probate opening documents are prepared (usually by a Utah probate lawyer retained by the decedent's survivors) and are filed with the probate court. The court appoints the personal representative, who ordinarily administers the estate without court supervision. If the decedent had a last will, the court determines if the will is valid. When the estate has been fully administered, the necessary probate closing documents are filed with the probate court, a final distribution is made to the heirs or beneficiaries, and the court discharges the personal representative from further responsibility.
KEY PROBATE TERMS:
Personal representative – the legal representative of an estate. They are the person appointed by the Court to collect all of the Decedent’s assets, resolve proper debts and distribute the remaining assets according to the Decedent’s last will and testament. With a few exceptions, a Personal Representative acts independently of the probate court’s control. Even these independent representatives must apply for the position and be approved by the court. Personal representatives are also required to prepare an Inventory, List of Claims, and file proof of required legal notices to creditors and beneficiaries.
Probate Estate -all of the Decedent’s assets that are subject to his or her last will and testament.
Non-Probate Estate – all of the Decedent’s assets that pass by written contract–assuming the Decedent named a beneficiary–to the persons designated. Bank accounts, investment accounts, life insurance policies, and retirement accounts are common non-probate assets. When properly executed, the written contracts for these accounts allow them to pass to the persons designated by the Decedent, without regard to a will.
Beneficiaries -those persons who are entitled to receive the Decedent’s estate under the Decedent’s last will and testament (and any applicable codicils, which are amendments to a will).
Heirs -those persons who are entitled to receive the Decedent’s estate under the laws of intestacy (the law that applies in the absence of a will).