As I discussed in a prior post, most states allow title to certain property to be transferred by sworn affidavit, without the need for any probate court intervention or supervision. Utah is one such state: Utah Code 75-3-1201 provides that thirty days after death, any person in possession of personal property belonging to the decedent may transfer the property to a person claiming to be the successor of the decedent if the successor has signed an affidavit, the value of the entire estate subject to administration does not exceed $100,000, and no probate proceedings have commenced.
Historically, shares of stock in a water company owned by a deceased individual were eligible to be transferred in Utah on the basis of a small estate affidavit. Water shares are different from water rights, which are generally transferred by deed and are appurtenant to the underlying property. Ownership of water rights can often be verified by searching the Utah Division of Water Rights website located here. However, because water rights are generally transferred by deed and because not all deeds are reported to the Water Rights Division, this website does not always have current information. In contrast, shares in a water or irrigation company are generally transferred by a physical stock certificate that represents the owner's interest in the company, and it is the company itself that owns underlying water rights.
Because real property interests such as appurtenant water rights cannot generally be transferred pursuant to a small estate affidavit (for more information, see this prior post), a small estate affidavit is unlikely to be effective for transferring water rights in the name of a decedent. In addition, due to the enactment of H.B. 89 (2025), Water Transfer Amendments, shares of stock in a water company are no longer eligible to be transferred in Utah on the basis of a small estate affidavit. This makes pre-death planning with the assistance of a knowledgeable estate planning attorney all the more important if the goal of probate avoidance in an estate plan is to be achieved.
Historically, shares of stock in a water company owned by a deceased individual were eligible to be transferred in Utah on the basis of a small estate affidavit. Water shares are different from water rights, which are generally transferred by deed and are appurtenant to the underlying property. Ownership of water rights can often be verified by searching the Utah Division of Water Rights website located here. However, because water rights are generally transferred by deed and because not all deeds are reported to the Water Rights Division, this website does not always have current information. In contrast, shares in a water or irrigation company are generally transferred by a physical stock certificate that represents the owner's interest in the company, and it is the company itself that owns underlying water rights.
Because real property interests such as appurtenant water rights cannot generally be transferred pursuant to a small estate affidavit (for more information, see this prior post), a small estate affidavit is unlikely to be effective for transferring water rights in the name of a decedent. In addition, due to the enactment of H.B. 89 (2025), Water Transfer Amendments, shares of stock in a water company are no longer eligible to be transferred in Utah on the basis of a small estate affidavit. This makes pre-death planning with the assistance of a knowledgeable estate planning attorney all the more important if the goal of probate avoidance in an estate plan is to be achieved.
