One of the most difficult moments in life is when a loved one passes away. Dealing with the estate of a deceased loved one can be a stressful and emotionally depleting time for many people. Unless all the assets were held in a living trust or the estate is small, the estate will go through a court-managed process known as probate or estate administration. Through probate, the assets of the deceased are managed and distributed based on the terms in their will, or, if there is no will, according to statute. If your loved one took the time to construct a will, the assets will need to be administered by a personal representative (executor). The probate process can take several months, even when uncontested. When contested, in can take well over a year to complete.
In Utah, probate typically follows these steps:
- File a petition with probate court
- Provide notice to those named in the will
- Petition the court to appoint a personal representative (usually the one(s) named in the will)
- Prepare an inventory and appraisal of estate assets
- Make payments to creditors
- Sell/liquidate estate assets (that are not being distributed in kind)
- Pay estate taxes
- Make a final distribution of assets to heirs
Will & Inheritance Disputes
There are several instances when a family member will contest a will. It is not uncommon for the people named in a will to have disagreements, which can lead to protracted litigation.There are several reasons why a dispute may occur, but these are the most common reasons we see disputes in probate and inheritance cases:
- Unequal division of assets
- Misinterpretation of a will or trust
- Undue influence from a spouse
- Being cut out of a will
- Mismanagement of the trust estate by the personal representative
When assisting clients involved in probate disputes, the first step is to to review the will and other estate planning document carefully in order to ascertain the decedent’s wishes. Next, we analyze the proper distribution of assets, and then recommend options for how to resolve the dispute. Our goal is to avoid expensive litigation and attempt to resolve the matter amicably. If it is not possible to do it amicably, we may recommend mediation and/or litigation. In the end, court resolution may be inevitable. If you are dealing with a dispute over a will, don’t hesitate to contact our office for assistance.
What Assets are Handled in Probate?
Probate is a process where titles are transferred from the name of the deceased to the people named in the will. However, not all estate assets need to be probated. There are certain assets known as “non-probate assets” that do not go through probate. Typically, these assets include the following:
- Property owned as “joint tenants with right of survivorship.” Property of this type will be passed to the surviving co-owner.
- Property that is owned by a living trust. The legal title to the property will be passed to successor trustees and/or distributed to named beneficiaries.
- IRA and 401(k) retirement accounts with designated beneficiaries.
- Life insurance policies are distributed to the designated beneficiaries.
- Bank account with “pay on death” designations or “in trust for” designations.
Do Personal Representatives/Executors Get Paid?
Personal Representatives/Executors are reimbursed for all legitimate out-of-pocket costs incurred during the management and distribution of the deceased’s estate. Personal Representatives/Executors need to fulfill their fiduciary duties to the estate and may be liable for mismanagement of the estate assets. The personal representative/executor should retain an attorney and accountant to advise and assist with their responsibilities.
Does Probate Cost Money? How Long Does Probate Take?
Probate can be an expensive process depending on the complexity and value of the estate, the existence of a will and the location of the property owned by the estate. If there are will contests or disputes with creditors over debts, it will add to the cost and timeframe of the probate process. The following are common costs associated with probate:
- Personal Representative/Executor fees
- Attorney fees
- Accounting fees
- Court fees
- Appraisal costs
Probate is a more streamlined and efficient process than it was in the past. Nevertheless, probate can be expensive and if it needs to be litigated, can take close to two years to resolve. If you have additional questions about probate and estate administration, contact Willow Creek Law at 801.233.0606.