What is a Probate?
When someone dies and the title to certain types of assets remains in the name of the decedent, a probate is filed with a court to allow title to that property to be passed to heirs at law or to the heirs named in the decedent’s will. For example, if someone dies owning real estate and the property was not otherwise in a trust, a probate would need to be filed for the property to be conveyed to the administrator of the decedent’s estate.
How long does a probate take?
The initial goal with a probate is to get documents, called letters testamentary, to be issued by a court. The letters testamentary allow the executor to administer and convey property for the benefit of the decedent’s heirs.
If a will was properly drafted and executed by the decedent and all of the heirs can be easily contacted and are willing to waive certain formal processes and procedures, the letters testamentary can normally be obtained from a Utah court within a couple weeks of the filing of the probate action.
When is a probate necessary?
A probate is necessary when a decedent’s estate is valued at over $100,000.00 and the property otherwise has no named beneficiaries or joint title holders. Whenever title to real estate is vested in the decedent is not in a trust or is not in joint tenancy, a probate must be initiated.
How do I avoid probate?
The short answer is to execute a trust, convey your property into the trust and keep the trust up to date.
While it may initially seem like a good idea to simply title property jointly with a child or other family member, such a decision can lead to financial disaster in the event the child incurs debt or a liability event occurs which would leave your assets subject to a judgment or lien.
Do I need a probate if I have a Will?
A will is not enough to avoid probate because a will does not convey title of assets to a trustee, the property simply remains in your name personally. A copy of the will will need to be provided to the court and letters testamentary will be issued to allow an executor to fulfill the terms of the will. An executor of a will has no legal ability to convey or sell property without authorization from the court in the form of the letters testamentary.