Can I file probate with no will in Utah if the decedent created no written estate plans?
Dying without a will can make estate administration more complicated under Utah law. The question of whether probate will be necessary generally depends on three other questions:
- Did the person own real estate (house, land, etc.) as an individual?
- Did the person have assets valued at more than $100,000?
- Are family members (heirs) fighting over who gets what?
A “yes” answer to any one of the first two questions will likely mean that probate will be necessary. A “yes” answer to the third question is a signal that extra caution should be exercised.
It is possible to file probate without a will. But if the decedent left a valid last will and testament, the will must be filed with the court if a probate action becomes necessary. To conceal the existence of a valid will may constitute criminal fraud.
Main Functions of a Probate with No Will
Filing probate with no will in Utah should normally accomplish at least three objectives: 1) designate and appoint a personal representative (i.e. executor) for the decedent’s estate; 2) determine and identify the decedent’s heirs; and 3) clarify the appropriate distribution of assets under Utah’s intestate succession laws.
These objectives are all functions that can be accomplished much more easily by executing even a relatively simple will before death. When combined with a living trust, in many circumstances the need for probate can be entirely avoided.
Options for Avoiding Probate
Living Trusts – Developing an estate plan that includes a living trust along with a last will and testament can be one of the best ways to avoid probate problems. When real estate and other significant assets are placed in a living trust, they are no longer treated as part of the decedent’s estate. In most cases, trust assets can be administered without the involvement of the probate court.
In most cases where a living trust has been created, there will also be a last will and testament. Even if a will cannot be located, the trust may still be administered without a probate action. It is also possible that assets remaining outside of the trust may also be administered without probate through the use of a small estates affidavit.
Small Estates Affidavit – If a decedent has an estate that includes no real property and that is valued at less than $100,000 (either as a total absolute value or as the value of assets not placed in a living trust), then the estate may be administered and distributed through the use of a small estates affidavit. If the estate distribution is not contested, then a small estates affidavit is a relatively simple tool that can be created and used without involving the probate court.
A small estates affidavit may sometimes be appropriate both in cases where there is no will and also in cases where a valid will was left. The nature and size of the decedent’s estate will determine whether the option of a small estates affidavit will be available. But it is the absence of or existence of a valid will that will determine how distributions will be made.
If a valid will exists, then distributions made through a small estates affidavit must follow the distribution instructions contained in the will. If no will exists, then distributions must follow Utah’s laws governing intestate succession.
Finding an Attorney to Help
Filing probate with no will may be more complicated than a probate action that is filed only to appoint a personal representative who has been named in a valid will. But avoiding probate altogether is almost always more preferable. If probate cannot be avoided, an experienced attorney can help make the process easier.
If you are thinking of establishing an estate plan or modifying an existing estate plan in order to avoid probate, having the assistance of a good estate planning attorney is important. Contact us today to see how the right attorney can help.