In Utah, the probate court determines whether a decedent, the person who has died, created a valid will. If the decedent did not create a valid will, the probate court will distribute the decedent’s property, including real estate, in accordance with Utah law regarding intestate succession.
Whether a surviving spouse or other family member receives the decedent’s property depends on that individual’s relationship to the decedent.
Share of a Surviving Spouse
Utah Code provides that a surviving spouse will inherit the entire estate if no descendant of the decedent survives. The surviving spouse will also inherit the entire estate if all of the decedent's surviving descendants are also descendants of the surviving spouse. The surviving spouse will inherit the first $75,000, plus one-half of any balance of the estate if one or more of the decedent’s surviving descendants are not descendants of the surviving spouse.
If the estate passes to the decedent’s surviving spouse and to other heirs, then any non-probate transfer received by the surviving spouse is added to the probate estate. A non-probate asset is property transferred in the decedent’s lifetime or through an instrument other than a will, such as an insurance policy.
Such transfers are treated as an advancement to determine the surviving spouse’s share. An advancement is a gift that a person makes during their lifetime in advance of their death.
Shares of Other Heirs Under Utah's Intestate Succession Laws
Any part of the intestate estate that does not pass to a deceased person’s surviving spouse passes to the individuals who survive the decedent. The entire intestate estate will pass to the decedent’s surviving family if there is no surviving spouse. In Utah, the estate passes in this order:
- To the decedent’s descendants per capita at each generation.
- If there is no surviving descendant, to the decedent’s parents equally if both survive. If only one parent survives the decedent, the estate goes to that parent.
- If there is no surviving descendant or parent, to the descendants of the decedent’s parents or either of them per capita at each generation.
- If there is no surviving descendant, parent or descendant of a parent, but the decedent is survived on both the paternal and maternal sides by one or more grandparents or descendants of grandparents, half to the decedent’s paternal grandparents equally if both survive or to the surviving paternal grandparent if only one survives. Alternatively, the estate will go to the descendants of the decedent’s paternal grandparents or either of them if both are deceased. The descendants will take per capita at each generation.
- The other half will go to the decedent’s maternal grandparents equally if both survive or to the surviving maternal grandparent if only one survives. Alternatively, the estate will go to the descendants of the decedent’s maternal grandparents or either of them if both are deceased. The descendants will take per capita at each generation.
If none of these scenarios fit the circumstances for inheritance, then the Utah Code contains additional provisions to account for which parties will inherit assets in the decedent’s estate.
Per Capita Inheritances
The term “per capita” means per person. In a per capita scenario, an heir, or someone who inherits property when there is no will, receives their inheritance only if they survive the decedent. If an heir dies before the decedent, their share is divided among the surviving heirs.
Descendants of the deceased heir do not receive an inheritance. For example, if Martha died without a will and had no surviving spouse, but she had three children, Isaac, John, and Robert. Isaac had two children, Lois and Henry. Isaac died before Martha passed. In this case, John and Robert would divide Martha’s estate. Lois and Henry would not inherit property from Martha.
Non-Probate Assets Include Bank Accounts
Non-probate assets include assets that pass to a person or entity by virtue of language in a bank account or policy. Examples of non-probate assets include sums from insurance policies, funds in pay-on-death bank accounts and monies in 401(k) or other retirement accounts with named beneficiaries.
These assets do not fall into the residue of the estate. Such assets would not have passed to a beneficiary through a will had a valid will existed.
Getting Help From an Estate Planning Attorney
An attorney with experience in estate planning can assist a person in drafting a will or trust and executing the documents. The term “executing” here means signing the will and having it witnessed so that the document has legal effect.
An attorney can also review a will that a person has drafted to determine whether it is sufficient and distributes all of the property according to the decedent’s wishes.
When Probate Is Required
It is possible for a decedent to give personal or real property to a beneficiary through a trust. This will ensure that the property will not be distributed through a probate proceeding. If the decedent does not execute a valid trust, the decedent's estate must go through probate if the estate includes real property of any value.
An estate must also go through probate if it has assets other than land, not including cars, with a net worth of over $100,000. Real property is defined as land, a house, a condominium or mineral rights. The process involves the probate court appointing a personal representative, or executor, of the estate.
Small Estate Affidavit
When Utah law does not require that an estate go through the probate process, an heir may be able to receive personal property such as a vehicle using a small estate affidavit. An affidavit is a written statement confirmed by oath or affirmation, to be used as evidence in court.
In Utah, a person does not file a small estate affidavit with the court. Instead, the decedent’s successor fills out the small estate affidavit form, signs it before a notary and gives it to a third party holding the property, like the bank. A successor may use a small estate affidavit if:
- Entire value of the estate is under $100,000.
- There is no real property.
- At least 30 days have passed since the decedent died.
- There has not been an application for appointment of a personal representative filed with the probate court.
If there is a question about the identity of the decedent’s successor, a third party can ask that the court appoint a personal representative before distributing the asset.
Qualifications for a Personal Representative
Although anyone can file a probate case, an applicant must be at least 21 years old to be appointed a personal representative. Certain individuals have priority for being appointed the personal representative. When there is no will, such individuals include:
- Surviving spouse.
- Any heir of the decedent.
- Any creditor of the decedent, if 45 days have passed since the decedent’s death.
Responsibilities of a Personal Representative
A personal representative is responsible for:
- Collecting all monies owed to the estate.
- Paying taxes and mortgages on real estate owned by the decedent.
- Managing the estate.
- Making repairs to the estate when needed.
- Acting as a prudent investor.
- Filing estate tax returns.
- Settling the remainder of the estate, after distribution to creditors and heirs, in accordance with the will or the law.
- Final accounting regarding the estate.
Informal Probate vs. Formal Probate
Informal probate is the process of requesting the court to appoint a personal representative of an estate without a hearing. This process is used when interested parties agree about who should be the personal representative and how the estate should be distributed.
Interested parties include heirs, children, spouses, creditors, beneficiaries and others having a property right in, or claim against, the estate.
Formal probate is the process of asking the court to appoint a personal representative with a hearing. Formal probate is used when interested parties disagree about who should serve as the personal representative or how the estate should be administered or distributed.
When a Will Is Invalid
An estate will be distributed according to Utah's intestacy laws when a will is held to be invalid. The court may rule that a will is invalid if:
Impact of Undue Influence
The term “undue influence” means that another party exerted extreme pressure on the testator to execute the will. For example, if a person refused to help an elderly testator get medicine unless the testator included them in the will, this would qualify as undue influence. The term “fraud” means that another party deceived the testator as to the document’s nature and purpose.
For example, the person got the testator to sign a document saying it was a credit card bill, but the document really was a will, worded in a tricky way so as to disguise its true nature. Here the person would have committed fraud. The term “forgery” here means that another party forged the signature of the testator on the will.
Requirements for a Will
In Utah, a will must fulfill certain requirements. It must be:
- Signed by the testator or in the testator’s name by another individual in the testator’s conscious presence and by the testator’s direction.
- Signed by at least two individuals, each of whom signed within a reasonable time after they witnessed either the testator signing the will or the testator acknowledging the other party’s signature or acknowledgment of the will.
In Utah, a person may act as a witness to a will if they are an interested party who will receive property under the will.
A will that does not comply with the terms stated here is valid as a holographic will, if it is handwritten. A handwritten will does not have to be witnessed. For a holographic will to be valid, the signature and material portions of the document must be in the testator’s handwriting.
In Utah, a will does not need to be acknowledged by a notary public to be valid.
Revocation of a Will
A testator revokes a will by executing a subsequent will that revokes the prior will, wholly or in part, expressly or by having inconsistent terms. A testator also revokes a will by performing a revocatory act on the will, like burning, tearing, canceling, obliterating or destroying the will or any part of it.
A revocatory act like burning revokes the will even if the burn did not touch any of the words on the will.
The testator must perform a revocatory act with the intent and for the purpose of revoking the will or part of it. Another person can perform the act in the testator’s conscious presence and by the testator’s direction. For example, if another person is in the same room as the testator, the testator can tell them to rip up the testator’s will because the testator wants to destroy it.
Effect of Creating a New Will
Typically, the creation of a subsequent, or later, will revokes a prior will. If the subsequent will does not expressly revoke the prior will, by explicitly stating that it revokes the prior will, the execution of the subsequent will wholly revokes the prior will if the subsequent will is inconsistent with the prior will.
The testator must have created the subsequent will with the intent of replacing rather than supplementing the prior will.
- Utah Uniform Probate Code: Title 75, Chapter 2, Intestate succession and wills, Part 1: Intestate succession
- Utah State Courts: Informal probate
- Utah Uniform Probate Code: Title 75, Chapter 2, Section 502, Execution, witnessed wills, holographic wills
- Utah Uniform Probate Code: Title 75, Chapter 2, Section 505, Who may witness
- Utah Uniform Probate Code: Title 75, Chapter 2, Chapter 507, Revocation by writing or by act
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.