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 eight 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.

Instruments Entitled to Probate

When an individual passes away, they may leave assets that cannot be sold or transferred to beneficiaries or heirs without probate. Probate is a judicial process and usually begins with a personal representative being appointed to administer the decedent's estate and the decedent's will being validated by the court.

The definition of "will" under the Uniform Probate Code is open-ended and includes "any testamentary instrument that merely appoints an executor, revokes or revises another will, nominates a guardian, or expressly excludes or limits the right of an individual or class to succeed to property of the decedent passing by intestate succession." This leaves open the possibility that an instrument not necessarily styled as a "will" could fall within the definition of a will. Of course, any such instrument would need to otherwise meet the requirements for a will, most typically, that its execution be witnessed by two people.

The Uniform Probate Code contemplates the possibility that an instrument not necessarily styled as a will could be entitled to probate. As mentioned, the definition of "will" is open-ended, but the Code also refers to "testamentary instruments" in the context of what is entitled to probate. A testamentary instrument not styled as a will would likely need to be the subject of formal probate proceedings, as opposed to informal proceedings (see, e.g., section 3-402, stating that the a petition for formal probate of a will "requests an order as to the testacy of the decedent in relation to a particular instrument which may or may not have been informally probated...") but is nevertheless entitled to probate.

Historically, testamentary contractual arrangements, such as a promissory note designating an alternate payee in the event the named payee died prior to the note being paid, were often held to be unenforceable for failure to be attested or otherwise executed in accordance with the requirements for wills. However, in states that have adopted section 6-101 of the Uniform Probate Code, such arrangements are declared to be nontestamentary, and therefore not unenforceable for failure to be executed in accordance with wills formalities. Accordingly, such documents need not be probated to be enforceable.

However, any instrument not styled as a will that happens to have been executed in accordance with the wills formalities can be probated and should be probated if doing so would better fulfill the decedent's will or wishes. These situations are rare and will likely only arise where a competent estate planning attorney was not used, but they do arise. I have successfully secured the probate of a document best described as a trust agreement, and other kinds of instruments may be entitled to probate as well.