Welcome to CPA at Law, helping individuals and small businesses plan for the future and keep what they have.

This is the personal blog of Sterling Olander, a Certified Public Accountant and Utah-licensed attorney. For over nine years, I have assisted clients with estate planning and administration, tax mitigation, tax controversies, small business planning, asset protection, and nonprofit law.

I write about any legal, tax, or technological information that I find interesting or useful in serving my clients. All ideas expressed herein are my own and don't constitute legal or tax advice.

Utah Declaration for Mental Health Treatment

The Utah Advance Health Care Directive Act, among other things, allows an individual to sign an Advance Health Care Directive and appoint an agent to make health care decisions on their behalf. However, "[a]n adult's current health care decisions, however expressed or indicated, always supersede an adult's prior decisions or health care directives." This raises the question as to how an agent or medical professional can help someone who is refusing necessary care or otherwise acting contrary to their best interests.

A common course of action in this scenario is to seek guardianship, possibly on an emergency basis, over the person who is acting contrary to their own best interests. However, this can be an expensive, invasive, and time-consuming process that may lead to a court dismissal of the guardianship or a guardianship that unduly restricts the protected person's rights.

One alternative that is worth considering in Utah for anyone with mental health struggles is a Declaration for Mental Health Treatment. The key difference between this declaration and an Advance Health Care Directive is that a Declaration for Mental Health Treatment may not be revoked if the principal is considered incapable of making mental health treatment decisions by two physicians. In such a scenario, a declaration allows the declarant's agent to make decisions about mental health treatment as expressed in the declaration even if the declarant expresses contrary preferences or attempts to revoke the declaration.

For an excellent article on psychiatric advance directives like Utah's Declaration for Mental Health Treatment, see Mental Health Directives in Estate-Planning Engagements in Trusts & Estates by Moira S. Laidlaw. Such directives are an important tool that strikes a balance between the potential inefficacy of an Advance Health Care Directive and the overbearing nature of a guardianship for individuals experiencing an acute psychiatric episode.

Utah's Guardianship Bill of Rights

According to the American Bar Association, "Since 2015, at least 18 states have passed legislation to focus on the rights of individuals under guardianship, while others with existing laws have modified and strengthened those laws." Utah was added to this list earlier this year when H.B. 320, the Guardianship Bill of Rights, was passed and signed into law.

The Guardianship Bill of Rights "addresses the rights of a person alleged to be incapacitated with respect to a guardianship" and also "addresses the rights of an incapacitated person with respect to a guardianship." While it was always clear that an adult person alleged to be incapacitated had a right to be represented by an attorney prior to having a guardian appointed, that right was less clear after having been declared incapacitated and having a guardian appointed. After all, is a person under full guardianship legally capable of retaining an attorney?

The Guardianship Bill of Rights specifies that "an incapacitated person for whom a guardian is appointed has [the] right to... have counsel represent the incapacitated person at any time after the guardian is appointed." This is an important clarification that will help prevent guardianship abuse.

Another important right that persons under guardianship have is to "receive telephone calls and personal mail and associate with relatives and acquaintances." This section works with Utah Code 75-5-312.5 to help address the "anecdotal evidence... that guardians, either well-meaning or for personal gain, have restricted the protected person’s access to their family..." The Guardianship Bill of Rights is an important law that provides meaningful protection for vulnerable individuals.

The Uniform Transfer on Death Security Registration Act

In a prior post, I discussed the trend in probate law whereby nontestamentary arrangements are increasingly favored as ways to transfer property upon death without the need for probate. One such arrangement that I have written about previously is the Uniform Real Property Transfer on Death Act. Another such arrangement is the Uniform Transfer on Death Security Registration Act.

The purpose of the UTODSRA is "to allow the owner of securities to register the title in transfer-on-death (TOD) form," thus providing for a non-probate mechanism for transferring a security upon the death of the owner. Under the act, one or more individuals who own a security can take ownership in "beneficiary form," which simply means that ownership reflects the name of the registered owner(s), followed by the words “transfer on death”, “TOD”, “pay on death”, or “POD,” followed by the name of the beneficiary.

The UTODSRA extends to interests in private companies, including limited liability companies. This can be very beneficial because it is often families of small business owners that have the greatest need for a simple, low-cost alternative to probate.

Many buy-sell agreements restrict ownership of a business to a small group of individuals and provide for the buy-out of an owner upon death. However, depending on the terms of the buy-sell agreement and the owner's individual estate plan, the successor of a deceased business owner may need to go through probate in order to give the manager of the business assurance that the proceeds of the interest buy-out are paid to the right person. The UTODSRA provides one option for streamlining the effectuation of a buy-sell agreement upon the death of a business owner.

Allocating a Decedent's Joint Debts Secured by Jointly-Owned Property

One of the tasks that needs to be completed in the process of administering a decedent's estate is to determine what debts the decedent owed and arrange for payment of those debts. Sometimes, decedents may be joint obligors on a debt with another person, in which case the estate may be liable for a portion of the debt.

Under common law, even if the decedent was jointly obligated on a debt that was secured by property owned in joint tenancy, the estate still had an obligation to pay a share of the debt even though the underlying property passed in its entirety to the surviving joint tenant. The majority rule permits contribution by the estate to the surviving joint tenant, while the minority rule does not; however, the trend does seem to be towards the minority rule. In 1998, the Supreme Court of Rhode Island in Mellor v. O'Connor, 712 A.2d 375 (R.I., 1998), settled the issue in that state by rejecting the majority rule, holding that the surviving joint tenant was not entitled to contribution from the estate of the decedent for payment of a jointly executed promissory note secured by a mortgage on the property. For a critique of this decision, see this analysis by Patrick A. Randolph, Jr., then a professor at UMKC School of Law.

Section 2-607 of the Uniform Probate Code provides that a "specific devise [under a will] passes subject to any mortgage interest existing at the date of death, without right of exoneration, regardless of a general directive in the will to pay debts." In other words, if a decedent's will leaves a property to a beneficiary, and the property is subject to a debt, the beneficiary is not entitled to contribution from the estate for payment of the debt.

In 2012, the Supreme Court of Montana in In re Estate of Afrank, 291 P.3d 576 (Mont. 2012), held that a debt encumbering property held in joint tenancy is not exonerated upon the death of one of the joint tenants, meaning that the surviving joint tenant is not entitled to contribution from the estate for a share of the encumbrance. While the property did not pass via will, the Court looked to Montana's Uniform Probate Code and applied the policy of nonexoneration to the case at hand.

This issue has not been decided in Utah, where presumably the majority rule under common law would prevail:
In a majority of jurisdictions the courts have taken the view, at least in the absence of evidence of other intention or special circumstances, that a surviving spouse is entitled to equitable contribution out of the estate of a deceased spouse, in reimbursement of the payment by the survivor of more than his equitable share of their joint obligation, even though the debt is secured by real property which was held by them as tenants by the entirety, and which, therefore, is wholly acquired by the surviving spouse as surviving tenant, leaving the estate of the deceased spouse with no interest therein. 76 A.L.R.2d 1004

Presumption of Beneficiary Designation Revocation by Divorce

When a couple gets divorced, the division of each and every asset they own must be specified in the divorce decree. Equally as important, the former spouses must update their estate plans after their divorce is finalized, including all beneficiary designations, consistent with the divorce decree. Frequently, however, this does not happen, and the family of a divorced individual who has passed away often finds a former spouse designated as beneficiary on a retirement account or life insurance policy.

In Utah, "[e]xcept as provided by the express terms of a governing instrument, a court order, or a contract [such as a prenuptial agreement], the divorce... revokes any revocable... disposition or appointment of property made by a divorced individual to the individual's former spouse in a governing instrument..." A "governing instrument" in this context includes a beneficiary designation, meaning that if an individual names their spouse as a beneficiary of a retirement account or life insurance policy, then gets divorced without updating the designation, and then passes away, the beneficiary designation is deemed to have been revoked by the divorce, barring a contrary provision in a contract or court order.

The Utah Supreme Court has interpreted this section as creating "a rebuttable presumption that a beneficiary designation... is revoked upon divorce. The presumption can be rebutted by express terms in the life insurance policy; a court order, including a decree of divorce; or a 'contract relating to the division of the marital estate made between the divorced individuals.'" Hertzske v. Snyder, 390 P.3d 307, 311 (2017).

A third-party payor, such as a life insurance company, "is liable for a payment made or other action taken after the payor... received written notice of a claimed forfeiture or revocation..." Such notice must be "mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor." While these provisions may be overruled by federal law or a benefits plan, they are designed to ensure that a divorced spouse's probable intent in removing their ex-spouse from a beneficiary designation after a divorce is enforced even if the beneficiary designation was not actually changed. 

Establishing an Unregistered Birth or Death

In Utah, an individual, an immediate family member, or a legal representative "may petition for a court order establishing the fact, time, and place of a birth or death that is not registered or for which a certified copy of the registered birth or death certificate is not obtainable." Utah Code 26-2-15(1). Such a proceeding must be brought where the birth or death occurred, where the individual currently resides, or where the individual resided upon death.

The petition must provide information regarding the date, time, and place of the birth or death and state that the vital record is unregistered or unobtainable. If all of the requirements of the statute are satisfied, the court will issue an order establishing the facts of a birth or death after a hearing.

Often, this statute is used by parents who adopt a child from a foreign country "not recognized by department rule as having an established vital records registration system." Obtaining a court order establishing the facts as to the child's birth is a prerequisite to the Department of Health issuing a birth certificate for the adopted child.

However, another situation where this statute can be very useful is for individuals trying to obtain dual citizenship in another country based on their ancestry. Proving ancestry based on official government documentation typically requires producing birth and/or death certificates. However, in Utah, a birth certificate can only be issued to a living person, and in the 1800s, it was not uncommon for births or deaths to occur without an accompanying vital record. In these cases, a court order pursuant to Utah Code 26-2-15(1) can satify the evidenciary requirement for ancestry even without an actual birth or death certificate.

Utah Recognizes the Tort of Intentional Interference with Inheritance

On July 1, 2021, the Utah Supreme Court held that the tort of intentional interference with inheritance is a valid cause of action in Utah. See generally, Matter of Est. of Osguthorpe, 2021 UT 23, 491 P.3d 894. The case involved a dispute between the children of Dr. D.A. Osguthorpe and David R. Rudd and the law firm of Ballard Spahr, LLP, with the children arguing that Rudd had "improperly influenced Dr. Osguthorpe to amend his will and trust in a manner that shifted a portion of the Children's expected inheritance" to Dr. Osguthorpe's second wife and his alma mater. The Supreme Court agreed with the children that the district court erred by declining to recognize intentional interference with inheritance as a tort and by dismissing their claim "on the alternative ground that, even if the tort were a valid cause of action in Utah, the probate proceeding would resolve all of their complaints."

While the Uniform Probate Code is intended to address and provide remedies for many kinds of trust and estate disputes, the Court concluded that "there are claims that seek to remedy other types of harms and thus are not displaced" by the Probate Code. For example, the Probate Code may not have an adequate remedy for a claim that "'the decedent intended to create a different will' which would have added a gift to the plaintiff, yet the decedent 'was prevented from doing so by the defendant.'" Similarly, in a claim that a "'defendant's tortious conduct had caused the testator to make an inter vivos conveyance... of assets that would otherwise have been part of the estate, setting aside the will" under the Uniform Probate Code would not provide an adquate remedy.

The elements for a claim of intentional interference with an inheritance in Utah come from the Third Restatement of Torts and are as follows:

   (a) the plaintiff had a reasonable expectation of receiving an inheritance or gift;
   (b) the defendant committed an intentional and independent legal wrong;
   (c) the defendant's purpose was to interfere with the plaintiff's expectancy;
   (d) the defendant's conduct caused the expectancy to fail; and
   (e) the plaintiff suffered economic loss as a result.

However, the claim of intentional interference with inheritance cannot be brought under any circumstance. Specifically, it "'is not available to a plaintiff who had the right to seek a remedy for the same claim' under Utah's Probate Code." For example, traditional claims of fraud, duress, or undue influence would need to be brought within the framework of the Probate Code. Nevertheless, Utah's recognition of the tort of intentional interference with inheritance will help fill in some gaps where a wrongdoing may otherwise elude a straight-forward remedy.