Probate and Estate Planning
Updated: Mar 15
We’ve talked about probate from time to time in our social media and on our blog and wanted to do a more detailed explanation of it and also talk about how probate and estate planning are connected.
When someone dies, their belongings must be distributed. Probate and estate planning, especially a Trust, are the two different ways that these belongings can be distributed.
Probate is the legal process that must be undertaken to distribute someone’s estate if they do not have a Trust.
There are two kinds of probate: formal and informal. In both processes, a petitioner asks the Court to appoint a personal representative over the estate. This appointment gives the personal representative the legal authority to distribute the estate either according to the decedent’s (person who has passed away) Will, or according to Utah’s legal parameters if there is no Will. It should be noted that, in Utah, Wills are only valid for 3 years after someone’s death, so probate must be done within that window, or else the Will will no longer be followed.
The difference between informal and formal probate that, in formal probate, there must be a hearing before a judge. Generally, if parties all agree on who the personal representative of the estate, informal probate is used. Thus, there is no need for a hearing in informal probate. If there is some disagreement over who should serve as the personal representative, formal probate is used so the judge can make the ultimate decision.
Informal probate is usually a relatively quick and easy process. However, formal probate can be long and quite expensive. This is where estate planning becomes especially useful.
Having an estate plan is the other way that a person’s belongings can be distributed upon their death. We have already mentioned a Will and its role in the probate process. A Will is created as part of an estate plan and does have the power to convey someone’s estate once a personal representative has been appointed to carry its instructions out. The presence of a Will makes the probate process easier because it leaves clear instructions about who the personal representative should be. This means that informal probate – the easier and less expensive of the two processes – can almost always be used.
Additionally, if you have an estate plan that includes a Trust, you can generally bypass the probate process all together. There is no need to take a Trust to a judge and have a personal representative appointed to carry it out. Instead, the trustee has all the power and authority necessary to enact the direction left within the Trust meaning there is nothing for a judge to do, so there is no need for probate.
Having a Will or a Trust inevitably lowers legal fees by decreasing the intensity of the probate process or doing away with the need for it all together. They also leave your loved ones with a clear set of directions to follow in your absence.
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