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 seven 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.

Alert: Fixing Problems with Online IRS EIN Applications

This post is an update to a prior post, with updated information about fixing rejected online EIN applications submitted on the IRS's website. Apparently, the IRS no longer allows entities to be the responsible party for an EIN application. According to the latest instructions for IRS Form SS-4, "Unless the applicant is a government entity, the responsible party must be an individual (i.e., a natural person), not an entity."

Previously, it was possible for an entity that had not obtained its EIN online to be the responsible party for a new entity's online EIN application. In recent months, I have become aware that many IRS online EIN applications are resulting in an error page that doesn't include a reference number. The cause of this error page could be identifying an entity as the responsible party. Unless you are a government entity, you'll need to list an individual with a social security number as the responsible party for all online IRS EIN applications. Thanks to Joel in New Jersey for bringing this to my attention.

Opening a Utah Probate Matter; Formal v. Informal

In my previous post, I discussed some of the basics of the probate process. In Utah, a key decision to be made when beginning the probate process is whether informal or formal proceedings will be utilized. That decision, and the existence or non-existence of a last will, dictate the assertions that need to be made in the initial petition or application filed with the court. The following chart summarizes the assertions that a probate petition or application must contain:

Informal Probate of Will Informal Appointment Only (no will)Formal Probate of WillFormal Appointment Only (no will)
Proceeding commences with application directed to Registrar; must be verified to be accurate and complete to the best of the applicant's knowledge  X(1)  X

Proceeding commences with petition directed to Court

 X(2) X
Requests an order as to the testacy of the decedent in relation to the will and determining the heirs

Requests an order that the decedent left no will, determining the heirs, and whether supervised administration is sought

Statement of interest of applicant X(5) X X(6) X(7)
Decedent’s name, date of death, age, and the county and state of domicile at time of death; names and addresses of the decedent’s spouse, children, heirs, and devisees and the ages of any who are minors X(8) X  X(9)  X(10)
Statement of venue, if the decedent was not domiciled in the state at the time of death  X(11) X  X(12)  X(13)
Address of any personal representative appointed whose appointment has not been terminated  X(14)  X  X(15)  X(16)
Whether applicant has received a demand for notice or is aware of any demand for notice of any probate or appointment proceeding concerning the decedent  X(17)  X  X(18)  X(19)
Original of decedent’s will is (i) is in possession of court; (ii) was filed electronically with court and is in possession of the applicant or attorney; or (iii) is an authenticated copy of a will probated in another jurisdiction...  X(20)
Whether original of will is in the possession of the court, accompanies the petition, or was filed electronically with court and is in possession of the applicant or attorney (if no original, state the contents of the will and indicate that it is lost, destroyed, or otherwise unavailable)  X(21)
Applicant believes the will to have been validly executed  X(22)  X(23) 
Applicant is unaware of any instrument revoking the will and believes that subject of the application is the decedent's last will  X(24)  X(25) 
Three years or less have passed since the decedent's death  X(26)   
Describe will by date of execution; state the name, address and priority for appointment of the person whose appointment is sought; state whether bond is required, and, if so, unless specified by the will, state the estimated value of the estate and income generated therefrom  X(27)  X(28) 
Applicant is unaware of any unrevoked testamentary instrument relating to property having a situs in this state, or, a statement why any such instrument is not being probated  X(29)     X(30)
The priority of the person whose appointment is sought and the names of any other persons having a prior or equal right to the appointment  X(31)     X(32)
If bond is required, the estimated value of the estate and income generated therefrom   X(33)     X(34)

1. Utah Code § 75-3-301(1)
2. Utah Code § 75-3-402(1)
3. Utah Code § 75-3-402(1)(a)
4. Utah Code § 75-3-402(3)
5. Utah Code § 75-3-301(2)(a)
6. Utah Code § 75-3-402(1)(b)
7. Utah Code § 75-3-402(3)
8. Utah Code § 75-3-301(2)(b)
9. Utah Code § 75-3-402(1)(b)
10. Utah Code § 75-3-402(3)
11. Utah Code § 75-3-301(2)(c)
12. Utah Code § 75-3-402(1)(b)
13. Utah Code § 75-3-402(3)
14. Utah Code § 75-3-301(2)(d)
15. Utah Code § 75-3-402(1)(b)
16. Utah Code § 75-3-402(3)
17. Utah Code § 75-3-301(2)(e)
18. Utah Code § 75-3-402(1)(b)
19. Utah Code § 75-3-402(3)
20. Utah Code § 75-3-301(3)(a)
21. Utah Code § 75-3-402(1)(c)
22. Utah Code § 75-3-301(3)(b)
23. Utah Code § 75-3-402(1)(b)
24. Utah Code § 75-3-301(3)(c)
25. Utah Code § 75-3-402(1)(b)
26. Utah Code § 75-3-301(3)(d)
27. Utah Code § 75-3-301(4)
28. Utah Code § 75-3-402(1)(b)
29. Utah Code § 75-3-301(5)(a)
30. Utah Code § 75-3-402(3)
31. Utah Code § 75-3-301(5)(b)
32. Utah Code § 75-3-402(3)
33. Utah Code § 75-3-301(5)(c)
34. Utah Code § 75-3-402(3)

Introduction to Probate Proceedings

One of the primary purposes of the probate process is to provide an efficient system for liquidating the estate of a decedent and making distributions to his or her successors in interest. When someone passes away with assets titled in their name, a system must be in place to deal with those assets and transfer them to the proper party. State courts oversee the probate process and have jurisdiction over (1) the estates of decedents who were domiciled in that state at death and (2) property located in that state belonging to decedents who were domiciled elsewhere. Venue for a probate proceeding is in the county where the decedent was domiciled at death or, if they lived elsewhere at death, in any county where property of the decedent was located.

If a decedent owned property in a state other than the one where the probate case is opened, an "ancillary" probate proceeding may be commenced in the other state. The personal representative accomplishes this by filing in the court of the ancillary jurisdiction authenticated copies of his or her appointment order or other certification of authority.

All property of a decedent devolves to persons named in their last will or, if there is none, to the decedent's heirs at law. In order "to be effective to prove the transfer of any property or to nominate a personal representative, a will must be declared to be valid" by a court. Thus, contrary to popular belief, a will does not avoid probate, it merely provides instructions to the probate court. Regardless of whether the decedent left a will or not, certain probate property can be distributed without a probate proceeding pursuant to a small estate affidavit.

Probate proceedings in Utah can be formal or informal. The key distinction in the commencement of a formal proceeding is that a court hearing is required before a court will appoint a personal representative. While no hearing is required to commence an informal proceeding (making it less costly and faster at the outset) the downside of informally probating a will is that any heir or devisee, even if they didn't object to the informal probate of the will, can subsequently petition the court to set aside the informal probate of the will.

In summary, the four primary types of probate proceedings are (1) informal probate in intestacy (no will), (2) informal probate of a will, (3) formal probate in intestacy, and (4) formal probate of a will. If all heirs will affirmatively agree on the key aspects of the probate proceeding and there is no will, informal probate will likely suffice. If such agreement cannot be obtained and there is a will, formal proceedings should be considered.