Frank S. Warner is a practicing lawyer in Ogden. Through From the Community, he shares information about issues affecting senior citizens and their families, including wills, trusts, powers of attorney, probate, guardianships, nursing home medicaid eligibility and other matters.
Probate has a bad reputation — you might even say a very bad reputation.
I say it doesn’t deserve that reputation. So, let’s take a stroll over to the courthouse and see just what probate is all about.
First, let’s take a look at what we mean by the word “probate.” Probate means a procedure overseen by a court in which a deceased person’s property passes from the deceased person (the decedent) to some other person or institution. In determining who should become the new owner of the decedent’s property, the court is guided by the decedent’s will — if the decedent had a will. If the decedent did not have a will, then the court is guided by the laws of intestate succession.
Back in the dark ages — that was prior to 1975 in Utah, when we adopted the Utah Uniform Probate Code (UUPC) — all probate procedures were very formal and involved a considerable amount of time, effort and cost by both the courts and the attorneys representing clients in probate matters. Under the UUPC, the process I am about to describe is still available in a “supervised probate” where circumstances require. Prior to 1975, every probate had to abide by the following process.
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First, after a person‘s death, someone having an interest in the decedent’s property — the person’s “estate” — would hire an attorney to file a petition with the probate court asking the court to appoint a person or institution to take control of the decedent’s property. Upon receiving the petition, the court would sign an order scheduling a date and time to hold a hearing regarding the petition and ordering the petitioner’s attorney to send out notices to all parties that might have an interest in the proceeding.
Every probate case had to start with this formal procedure where all interested parties would show up in court and each probate case scheduled for that date would be brought in front of the judge, one after the other. At the hearing the court would appoint an executor, executrix, administrator or administratrix, depending on whether the decedent has a will. Going forward, this was the person who had the job of managing the decedent’s estate, which included being certain all creditors had a chance of getting paid and disposing of the decedent’s estate by selling the decedent’s property and/or distributing the estate or the proceeds of its sale to the decedent’s heirs.
The first job of the executor (or whatever his or her title was) was to file with the court an inventory listing all of the decedent’s property and publish a notice to creditors in a newspaper of general circulation in the county where the decedent had resided.
If it was proposed to sell any of the decedent’s property, another petition had to be filed with the court seeking approval for the sale. Another hearing would be set, notices would be mailed to all interested persons and a hearing would be conducted to obtain a formal order from the court approving the sale. After all property proposed to be sold was sold and all creditors were paid, the executor had to file with the court a formal accounting of all financial transactions supported by copies of every receipt and every paid-out. Still another petition had to be filed, notices sent out and another hearing held to obtain another formal court order approving the accounting and proposed distribution of whatever was left of the decedent’s estate.
The formal process I have described — or something very similar — is still the process in many states. It is this laborious, time consuming and expensive process that has resulted in probate’s bad reputation. Fortunately, in 1975, Utah greatly streamlined the probate process by the legislature’s adoption of the Utah Uniform Probate Code. As I mentioned, this process is still available as a supervised probate where circumstances require, such as contentious relationships within a family, but fortunately it is the exception rather than the rule.
One nice refinement made by the UUPC is doing away with the executor/executrix/administrator/administratrix terminology by referring to the appointed person as the “personal representative.” But more importantly, under the UUPC, most probates in Utah today are conducted as informal probates. An initial petition or application is still required to be filed with the court, but unless there is a written objection filed by some interested party, no formal hearing is ever required. The whole process can be conducted informally by the personal representative and wrapped up in fewer than 30 days in many circumstances and fewer than four months in most others.
So, I would argue that in Utah, probate doesn’t deserve its bad reputation.
The information contained in this article is not intended as legal advice. No reader of this article should act or refrain from acting on the basis of any information in this article without seeking appropriate legal or other professional advice.