Probate Frequently asked questions

What is probate?

Probate is the court process that is required so that possessions and property can be passed from someone who died to their heirs and family. A probate action begins by filing a petition with the court to open a new case and to have someone appointed by the court to act on behalf of the estate as the Personal Representative of the estate. The term Executor of the Estate is another term sometimes used and has the same meaning as Personal Representative.
Through this process, the Personal Representative obtains the authorization from the court to settle the affairs of the estate. The Personal Representative has certain duties when handling the estate, including:

  • Paying the final bills
  • Determining heirs of the estate
  • Preparing an inventory of the estate
  • Gathering all of the assets of the estate for distribution
  • Filing a final tax return for the estate
  • Determining the validity of claims against the estate and, when necessary, paying those claims
  • Distributing the assets of the estate to those designated in the will or, when there is no will, to those heirs of the decedent as designated by Utah statutes.
Additionally, potential heirs of the estate must be identified and notified about the probate proceedings. Other responsibilities of the Personal Representative are to notify any known and unknown creditors of the estate. Once they have been notified, creditors have a specified time to make claims against the estate.
Generally, if a creditor fails to make a claim within the brief time period allowed by law, that creditor will lose the ability to make a claim. Known creditors must be contacted directly to be informed of probate proceedings.
For unknown creditors, notice of probate proceedings must be published in the newspaper. Creditors' claims are paid according to priority and based on the amount of assets of the estate available to pay claims.

When is probate necessary?

Probate is necessary whenever the deceased person owned property in his or her own name, or whenever he or she had assets that exceed $100,000. If you are not sure whether probate is required in your situation, it is best to consult with an attorney who handles probate matters in order to make that determination.

When is probate not required?

Probate is usually required to transfer assets held in your name after you die. If you own real estate or a bank account held in your name when you die, a probate proceeding is nearly always required to transfer those assets after you die. It may be possible to transfer clothing and other similar personal effects without a probate proceeding, but each situation is different. If your estate is worth less than $100,000 and does not include real estate, a simplied court process can often be used. We can provide advice regarding whether probate is required to family members of a deceased individual in each situation. On the other hand, Probate may not be required if a person set up a Trust during their life time and transferred their assets to their Trust.

How long does the probate process take?

The probate process takes a minimum of approximately four months, but often takes longer than that. If there is any dispute as to the validity of a will or the desires of the decedent, a probate case can sometimes take years to fully resolve, depending on the complexity of the dispute.

How is the probate process concluded?

Once the heirs of an estate have all been identified and have received notice and creditors have been notified and their claims have either been paid or denied, and assets have been distributed to the proper heirs, the probate action can then be closed through either an informal or formal court process.
With an informal closing, documents are filed with the court and the probate case remains open for one year. If, after that one year period, there are no matters pending with the court, the appointment of the Personal Representative terminates.
With a formal probate closing, the court approves the distribution of assets and the probate case is immediately closed and the Personal Representative can be immediately discharged of any further duties.

What is the role of the court?

The court oversees the entire process including authorizing the appointment of the Personal Representative and resolving any disputes that may arise with creditors or heirs of the estate.
The court can either have a formal role in a probate matter, or an informal role. If there is no dispute between any of the heirs of the estate or creditors of the estate, the probate matter can be handled informally.
With informal probate matters, typically no hearings or court appearances are required and the probate can be fully resolved through filing documents with the court.
With a formal closing of a probate matter, a Request for Formal Closing is filed with the court and a hearing is held and a judge authorizes the closing of the estate.

What are the responsibilities of the Personal Representative?

The responsibilities of the Personal Representative include the following:

  • File a petition with the court (with an original death certificate and will)
  • Get appointed Personal Representative of the estate
  • Notify creditors
  • Prepare an inventory of the assets and liabilities of the estate
  • Pay debts of the estate
  • Review and accept or reject creditors claims
  • Pay the final taxes (if any) of the estate and arrange for the filing of the final tax return
  • Distribute assets of the estate to the appropriate beneficiaries
  • File documentation with the court to close the probate matter and release the Personal Representative from any further liability or obligation
Probate can either be handled formally or informally. Informal probate proceedings require just filing paperwork and documents with the court, typically without any court hearings.
If there is no dispute as to who will handle the administration of the estate or how the estate assets are to be distributed, the probate matter can be handled informally. If there is any dispute, a formal probate proceeding is necessary.

What are the costs involved in Probate?

As of 2018, the court charges a filing fee in the amount of $360 to open a probate matter. To publish notice to creditors, newspapers usually charge around $200. Additionally, if you hire an attorney to prepare the court filings and guide you through the probate process, you will pay their hourly fee.
Fees for probate can vary widely, depending on what is needed. For a basic, uncontested probate matter, it may be as little as a few hundred dollars. For more complex estates that are contested in court, the fee could be significantly more based on the amount of time required to resolve and administer the estate.

Other questions?

Please feel free to contact us here with any additional questions, or send an email here.