What is probate?
Probate is the process that transfers legal title of property from the estate of the person who has died to the proper heirs.
Probate Steps
The steps in a probate are (1) the opening, (2) the notice to creditors and estate administration, and (3) the closing.
Opening
A probate is commenced or opened by filing documents with the probate court necessary to have a personal representative appointed and, if the decedent had a will, to have the will validated. If the opening is formal, a court hearing is required; if it is informal, no court hearing is required.
Notice to Creditors and Estate Administration
After the probate is opened, the personal representative publishes a notice in the newspaper that creditors must present their claims within three months or be barred. The personal representative does whatever else is necessary to administer the estate, including protecting and managing the estate property.
When the notice to creditors period has run, creditors' claims have been paid, and the estate has been fully administered, the personal representative can close the estate by filing the necessary documents with the probate court and by distributing the estate property to the appropriate heirs or beneficiaries. Like the opening, the closing can be formal or informal; again, a formal closing requires a court hearing, and an informal closing does not.
Generally speaking, a formal opening or closing results in a court order that cannot be challenged later. In contrast, an informal opening or closing usually costs less (because no court hearing is required) but can later be challenged in a formal proceeding.
The personal representative chooses the type of opening and closing. It's a good idea to get assistance from a Utah probate attorney in making this choice.
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What do probate attorneys do?
Probate attorneys deal with the legal process of validating a will. The assets of the deceased are inventoried; and all debts and taxes are paid. Then remaining assets are distributed to the named beneficiaries and heirs.
Probate can take anywhere from four months to several years, depending on state laws and individual circumstances.
A will is probated in the county and state where the person who wrote the will died. If there is property in another state, another probate (Ancillary) proceeding will be started in that state and county. Assets that do not pass directly to a surviving spouse or other heir through a right of survivorship such as a payable on death bank account are subject to formal probate proceedings.
If the decedent dies without a will (intestate), and no beneficiaries are named, the courts will determine the hierarchy of heirs according to state laws.
Probate Litigation
After a death in the family, timely and peaceful distribution of assets according to the wishes of the deceased is an important goal. All too often, however, families become embroiled in inheritance disputes before or during the probate process. Whether you wish to bring a will contest or defend against one, contact a knowledgeable lawyer in the event of inheritance disputes.
In probate litigation, the emotional involvement of the parties is very high. Family members are fighting against each other. We listen to our clients and try to provide them with the imformation they need to make important decisions about their case. If a settlement is the best option, we will push hard to see that it is in your best interest. We will never push you to go to court. Our goal is to resolve inheritance disputes as cost-effectively and with as little bitterness and anger as possible.
Wills and trusts are challenged for a variety of reasons. The drafting of the will may raise questions. Was it signed and witnessed correctly? Did the will treat one child more beneficially than the others? Was the trust properly executed, has their been wrong doing during the administration of the will or trust?
If you are a trustee or personal representative whose judgment or ethical conduct is in question, or a beneficiary or creditor whose rights are at risk because of an administrator's breach of fiduciary duty, we are here and ready to defend you and help bring about a successful resolution to the breach of fiduciary duty dispute.