Obtaining a Court Order Correcting a Death Certificate

In prior posts, I discussed establishing the fact of a birth or death where there is no birth or death certificate as well as changing a sex designation on a registered birth certificate. This post describes the process for obtaining a court order to correct a death certificate. 

UT Admin Code R 436-3-7 permits funeral home directors and family members to amend a death certificate in certain circumstances. The Utah Department of Health and Human Services website provides two different forms for amending a vital record; depending on the information needing to be correct, a court order may be required.

A petition for an order to correct a death certificate can be filed as a probate matter under the authority of the above-cited code section or, more broadly, Utah Code 78B-6-401, permitting "declaratory judgments determining rights, status, and other legal relations..." Individuals whose rights would be impacted by the change in information on the death certificate should be notified.

At the court hearing, which may be held as part of the consent calendar, if no one objects and adequate evidence of the need for the correction of the death certificate is provided, the court will issue the order. The court order should direct the Utah State Vital Records Office to allow a specific person who is related to the decedent to amend the death certificate and specify the information to be replaced and the correct information. This order is then submitted with the Affidavit to Amend a Vital Record by Court Order to the Office of Vital Records and Statistics.

Read More

Changing a Sex Designation on a Registered Birth Certificate

In a prior post from 2022, I discussed Utah Code 26-2-15, which has since been recodified to Utah Code 26B-8-119, pursuant to which a person may petition for a court order establishing the fact, time, and place of a birth for which no registered birth certificate is obtainable. In this manner, a birth certificate could be issued where one previously did not exist. At this time, nearby section 26-2-11 of the Utah Code provided a means for amending an existing birth certificate. Specifically, this statute provided instruction to the registrar that if a name change or sex change had been approved by a court, pursuant to an application form approved by the registrar, the registrar was required to "note the fact of the amendment on the otherwise unaltered original certificate."

Utah Code 26-2-11 was repealed and reenacted in 2023 to create "the procedure a court must follow to grant a petition to amend the sex designation of a birth certificate." Pursuant to this reenacted statute, a court may grant a sex designation change on a birth certificate if, among other things, the petitioner shows by clear and convincing evidence that he or she "has transitioned from the sex designation of the biological sex at birth to the sex sought in the petition [and has] outwardly expressed as the sex sought in the petition in a consistent and uniform manner for at least six months; and... suffers from clinically significant distress or impairment due to the current sex designation on the birth certificate."

Upon receiving such a court order, the petitioner is entitled to receive "a birth certificate that does not indicate which fields were amended..." Utah Code 26-2-11 was recodified in March of 2023 to Utah Code 26B-8-111. This statute was amended earlier this year to require a petitioner for a name or sex designation change to indicate whether they are registered with the Sex and Kidnap Offender Registry and allow the court to consider whether to grant the petition for any who are so registered.

Utah Code 26B, Chapter 8, Part 1 - Vital Statistics contains the law for issuing and modifying birth and death certificates. Section 111 is particularly helpful to individuals who have transitioned from their biological sex at birth as indicated on their original birth certificate.

Read More

Probate Code's One-Year Nonclaim Statute Protects Estates

In Utah, a creditor of an estate must present their claim within one year from the decedent's death or be forever barred. A court-appointed personal representative has the option, but not the obligation, to publish notice and give known creditors affirmative notice of the decedent's death and a shorter, three-month window to present claims. However, if no probate proceeding is commenced, the option for the three-month creditor window is not taken, and the one-year mark from the decedent's death is approaching, a creditor in Utah must file its own probate petition together with its claim.

Last year, the Utah Supreme Court clarified this statute in the case of Huitron v. Kaye, 517 P.3d 399 (2022), holding as follows:

[T]he Nonclaim Statute acts as a complete bar to claims against an estate that are not presented by the applicable deadline. This means that the presentment deadline is not waivable, and the one-year period cannot be tolled. And in an untimely suit against an estate for the sole purpose of collecting insurance proceeds, it means that the estate’s assets are not at risk as a matter of law. 517 P.3d at 404 (citations omitted).

This statute raises the possiblity that successors of a decedent may attempt to avoid payment of known claims by delaying administration until the one-year nonclaim period has run. However, the drafters of the Uniform Probate Code deemed this unlikely because:

[U]npaid creditors of a decedent are interested persons... qualified to force the opening of an estate for purposes of presenting and enforcing claims. Further, successors who delay opening an administration will suffer from lack of proof of title to estate assets and attendant inability to enjoy their inheritances. Finally, the odds that holders of important claims against the decedent will need help in learning of the death and proper place of administration is rather small.

Similar reasoning was used by the Colorado Supreme Court, interpreting another state's Uniform Probate Code nonclaim statute, in In the Matter of the Estate of Ongaro, 998 P.2d 1097 (2000). In that case, the court stated:

We are aware that the firm deadline for presenting claims... occasionally will work a hardship on claimants who do not receive actual notice of a decedent’s death. The General Assembly, however, has determined that the burden on those claimants is outweighed by the interest in the speedy and efficient settlement of estates.... A personal representative who decides not to provide known creditors with written notice of a decedent’s death and of the deadline for filing claims must forfeit the shorter nonclaim periods... in favor of the one-year period... 998 P.2d at 1104-1105.

In summary, the Uniform Probate Code balances the due process rights of creditors with the need for efficient administration of estates by including the one-year nonclaim statute. This limitations period cannot be tolled because "the personal representative is a trustee of the estate for the benefit of its creditors and heirs, and as such cannot by his conduct waive any provision of a statute affecting their substantial rights." Crowley v. Farmers Bank, 123 P.2d 407, 409 (1942). Anyone owed money or otherwise possessing a claim against an estate must make a formal claim against the estate in the manner prescribed by statute within one year of the decedent's death in order to protect their interests. 

Read More

Legal Pitfalls for Inexperienced Fiduciaries

As a simple local news search will reveal, criminal charges are regularly brought against fiduciaries who have allegedly breached their fiduciary duties. Criminal charges in the area of estate and trust administration could include unlawful dealing of property by a fiduciary and financial exploitation of a vulnerable adult.

The former is committed when a fiduciary "deals with property that has been entrusted to him as a fiduciary... in a manner which the person knows is a violation of the person's duty and which involves substantial risk of loss or detriment to the owner or to a person for whose benefit the property was entrusted." The latter is committed when anyone, among other things, "unjustly or improperly uses or manages the resources of a vulnerable adult for the profit or advantage of someone other than the vulnerable adult..."

There are obvious examples of cases where a fiduciary admits to using trust funds for personal use and criminal charges are warranted. However, it is not difficult to imagine a scenario where an inexperienced fiduciary has good intentions but doesn't keep a proper accounting or invests trust funds imprudently and a vindictive beneficiary seeks criminal charges.

An inexperienced trustee should clearly be held to account and restore, but there are civil remedies and civil damages available to beneficiaries that seem more appropriate as a first resort. Any fiduciary would be well-advised to seek legal counsel to avoid civil or criminal issues arising from their service.

Read More

Posthumous Common Law Marriage in Utah

In Utah, like many states, marriage-like relationships that were never solemnized can be declared valid by court or administrative order. "A petition for an unsolemnized marriage shall be filed during the relationship... or within one year following the termination of that relationship", which includes termination due to the death of one of the parties. Utah Code 30-1-4.5(2)(a).

A key step in any posthumous common law marriage petition is securing the appointment of a personal reresentative over the decedent's estate because the marriage petition must be served on the personal representative. Gardiner v. Taufer, 2014 UT 56, 342 P.3d 269. A court order of a common-law marriage after death would significantly impact the rights of the natural relatives of the decedent, making a probate proceeding indispensable.

Any petitioner must be prepared to show the court that the petitioner and the decedent (a) were of legal age and capable of giving consent to the marriage, (b) were legally capable of entering a solemnized marriage, (c) cohabited, (d) mutually assumed marital rights, duties, and obligations; and (e) held themselves out as and had acquired a uniform and general reputation as husband and wife. See Utah Code 30-1-4.5(1). Consent to the marriage can be shown by "maintenance of joint banking and credit accounts; purchase and joint ownership of property; the [sharing of a spouse’s] surname by the [other spouse] and/or the children of the union; the filing of joint tax returns; speaking of each other in the presence of third parties as being married; and declaring the relationship in documents executed by them while living together, such as deeds, wills, and other formal instruments." Volk v. Vecchi, 467 P.3d 872, quoting Whyte v. Blair, 885 P.2d 791, 794-795.

There are many reasons to seek a posthumous common law marriage, such as "to claim insurance benefits, retirement benefits, survivor benefits, or public benefits, or to inherit property." The Utah Courts provide a marriage petition form on their website as well as ancillary documents. However, due to the multiple proceedings that may be required and the evidentiary requirements, seeking legal counsel in a marriage petition is strongly advised.

Read More

Co-Fiduciaries in Probate and Planning

The terms of fundamental estate planning documents always include designating a fiduciary in each such document. Specifically, a last will will designate a personal representative of the estate, a power of attorney and health care directive will designate an agent to make decisions during life, and a trust agreement will designate a successor trustee. If an individual does not have a power of attorney or health care directive, a guardianship and conservatorship will sometimes be required, wherein the court will appoint a guardian and/or conservator.

There are obvious benefits in designating multiple co-fiduciaries in any of these situations as opposed to a single fiduciary. Co-fiduciaries can provide a check and a balance on each other and share the burdens of serving in the role. The primary downside is more complexity in carrying out the co-fiduciaries' duties because often multiple fiduciaries will need to act together in signing documents or taking other action.

The terms of the relevant governance document must always specify whether co-fiduciaries can act independently or if they must act together. State law provides default answers in certain circumstances, but it is not always clear or predictable what the default rule is. Utah Code 75-3-716 states that co-personal representatives of an estate generally act by majority vote unless the will provides otherwise, and Utah Code 75-7-703 addresses co-trustees and by default would require the action of both. Utah Code 75-2a-108 also provides for majority vote in the health-care decision-making context.

However, Utah Code 75-9-111 has the opposite default in the case of co-agents under a power of attorney, meaning that each can act independently unless the governing document provides otherwise. The comments to the Uniform Probate Code indicate that some questions as to whether co-fiduciaries must act together were deliberately left to state law, and in Utah anyway, it is unclear what the default rule is in the case of co-guardians and co-conservators. Best practices clearly require the governing document or court order to specify whether co-fiduciaries can act independently or whether they must act together.

Read More

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.

Read More

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

Read More

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. 

Read More

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 satisfy the evidentiary requirement for ancestry even without an actual birth or death certificate.

Read More

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.

Read More

Introduction to Claims Against an Estate

A creditor of an individual who passes away has certain rights but must take affirmative steps to preserve those rights in order to receive payment. In Utah, a creditor wishing to present a claim must deliver or mail a written claim to the personal representative of the estate or the personal representative's attorney of record or file a claim in the court probate proceeding. Practically speaking, this means that a creditor can only bring a claim against an estate after a personal representative has been appointed or a probate matter opened in court.

All claims against a decedent's estate that arise before the death of the decedent must be presented within one year after the decedent's death at the latest. The personal representative has the opportunity to shorten this timeframe by either giving written notice to known creditors that claims must be presented within 60 days or publishing notice to creditors generally that claims must be presented within 90 days. With few exceptions, these time limits are absolute bars to recovery of debts from an estate.

Accordingly, best practices for a creditor include monitoring probate filings to see whether a personal representative has been appointed over a debtor's estate because the creditor may not necessarily receive actual notice of the appointment or a notice to present claims. If the one-year mark from the decedent's death is approaching and no personal representative has been appointed, a creditor in Utah must file its own petition for appointment of a personal representative together with its claim.

Statutory allowances for surviving spouses and children as well as various costs of estate administration, last medical bills, and taxes all have priority for payment over unsecured creditor claims. Moreover, the personal representative has until 60 days after the time for original presentation of the claim has expired to mail the creditor a notice of disallowance. If the creditor's claim is properly disallowed, the creditor must seek a court-ordered allowance by filing a petition for allowance within 60 days after the mailing of the notice of disallowance. If the claim is valid, the estate has sufficient funds, and the creditor complies with the law, its right to be paid will be preserved. 

Read More

What to Do After A Loved One Passes Away

When a loved one passes away, there are a number of legal and financial matters that must be attended to. One of the first steps the family must take is to make funeral and burial arrangements. Consider whether the decedent had a life insurance policy specifically for funeral expenses or a prepaid funeral plan. Death certificates should be ordered, which many funeral homes will help with. Banks, mortgage holders, credit card issuers, employers, government agencies (such as the SSA), utility companies, and the decedent's advisors should be notified of the decedent's passing. Dealing with large estates is beyond the scope of this post, but in those instances, there are a number of critical tax deadlines that should be discussed with an attorney.

An estate is a separate taxable entity recognized by the IRS; accordingly, the personal representative should obtain an employer identification number from the IRS. The personal representative should also file IRS Form 56 in order to notify the IRS of the fiduciary relationship. The benefit of filing this form is that any correspondence the IRS attempts to send to the decedent at the decedent’s address will be instead sent to the fiduciary, which can avoid problems that arise due to missing IRS deadlines. Other mail for the decedent should also be forwarded.

The decedent's final debts should be paid; note that many debts, such as credit card debts, can be negotiated and satisfied for less than face value. Publishing a notice to creditors can provide assurance that no creditors will come forward after the time prescribed by statute.

The most time-consuming process will likely be to gain custody of all of the decedent's assets and arrange to distribute those assets to the beneficiaries. Some entities with custody of the decedent's assets, such as a bank, may grant custody of the asset to the decedent's representative pursuant to a small estate affidavit; otherwise, probate will likely be required. If the decedent established one or more trusts during their lifetime, a process of trust administration will likely be required. Many assets, such as life insurance policies, pass to heirs outside of any will or trust pursuant to beneficiary designation. The decedent's beneficiaries will need to submit claim forms to the financial institution issuing such policies. One oft-omitted step is to see if the decedent has any unclaimed property being held by the state.

Whatever property the decedent did own should be listed in a detailed inventory, together with their fair market values. Tangible assets should be safeguarded until distributed to the rightful recipients. Once all claims against the estate have been paid and provision made for any final taxes or professional fees, the beneficiaries of the estate should sign a "receipt and release" indicating that they agree with the final distribution. Once the estate has been distributed and final expenses paid, the estate can be closed.

Read More

Utah Probate Update

In a prior post, I discussed a new law requiring personal representatives to send copies of most probate pleadings to the Office of Recovery Services via certified mail. I predicted that this new law would not remain unchanged for long, and I was correct. Utah H.B. 343 limits the court filings that trigger notice to probate petitions and places the burden on the court to send notice. This is a logical change in the law that reduces unnecessary paperwork and eliminates a pitfall for the unwary.

In addition, two new rules regarding probate contests have been passed. Utah Rules of Civil Procedure 26.4 adds clarity to the process for contested probate proceedings where a party makes an objection to an action arising under the Utah Uniform Probate Code. Most notably, the objector, now the defendant in the matter, must file a written objection with the court setting forth the grounds for the objection and supporting authority and mail the objection to the other interested parties. If the defendant fails to do this, the relief sought by the petitioner can be granted. Estate planning documents must generally be included in initial disclosures and, in the case of a guardianship or conservatorship, an evaluation of less restrictive options is now required.

Finally, Utah Code of Judicial Administration Rule 6-506 provides that "all probate disputes will be automatically referred by the court to the Alternative Dispute Resolution (ADR) Program," unless waived by the court, which has long been the practice in Third District. This new rule also clarifies the procedures for a pre-mediation conference. Probate contests are often complicated matters with difficult family dynamics, and these new rules provide some needed clarity.

Read More

Free, Simple Last Will and Testament Form

Below is a very simple form for a last will and testament that you are welcome to use for free, subject to this disclaimer and to the following: Executing a will does not guarantee that all, or even most, of your property will be subject to the will. A last will and testament will have no impact on property held in joint tenancy with a surviving tenant; retirement plans, brokerage accounts, and life insurance policies that have a valid beneficiary designation; pay-on-death bank accounts; and property titled in trust. A will alone will not allow your estate to avoid probate, and a will is only one component of a complete estate plan.

This will form is not appropriate for every circumstance, and only a competent estate planning attorney can provide advice regarding your particular situation. Under Utah law, this will form will be unenforceable unless it is (1) completed and signed by you and signed by two adults who witnessed you sign the will or (2) entirely handwritten and signed by the you. While witnessed wills are preferred, I have kept this will form short enough that it can be handwritten, in which case no witnesses are required. Once complete, you will need to deposit your will in a secure location or with someone you trust to carry out your will.

Last Will of
[your name]
1. This is my Will. I revoke all prior Wills and codicils.

2. I nominate [name of person you want to be in charge of your estate] as my personal representative. If they do not serve, I nominate [name of alternate] to serve in their place.

3. I might prepare a separate written list of items of tangible personal property and designate who I want to receive such items. If I complete such a list, I give such items to the persons designated therein as the recipient of each such item.
This tangible property list is an optional document that is separate from your will; if signed, the list becomes incorporated into your will upon your death. It is a flexible option because if you change your mind about who you would like to receive a tangible item, you need not execute a whole new will, just update your list.

4. I give the balance of my assets as follows: Only chose one option
Option One: All to my surviving spouse; otherwise, to my descendants, by right of representation.
Option Two: All to my descendants, by right of representation.
Option Three: Equally to the following persons who survive me: [insert names of the beneficiaries of your estate]

Paragraphs 5 and 6 are only necessary if you have minor children
5. I nominate [name of person you want to be guardian of your minor children] as guardian of any minor children of mine. If they do not serve, I nominate [name of alternate] to serve in their place.

6. I nominate [name of person you want to be in charge your minor children's assets] as conservator of the estate of any minor children of mine. If they do not serve, I nominate [name of alternate] to serve in their place.

I execute this document as my Will on the _____ day of _______________, 20____, at _______________, Utah.

____________________
[Your Signature]

Unless your will is entirely handwritten, two adults who witnessed you sign your will must also sign.

Witnesses:

____________________
[Witness Signature]
[Witness Printed Name]

____________________
[Witness Signature]
[Witness Printed Name]

Read More

Real Property Transfer on Death

In a prior post, I referenced the trend in probate law of testamentary contractual arrangements becoming more common. One such arrangement that can be used to transfer real property is a transfer-on-death deed, which is available in any state that has adopted the Uniform Real Property Transfer on Death Act or a similar statute.

The URPTODA allows real property to be transferred almost like a brokerage account would be transferred pursuant to a beneficiary designation.  The law permits a property owner to execute a transfer-on-death deed naming another individual or entity that will take title to the property upon the owner's death. Such a deed is revocable during the owner's life, meaning that the designated beneficiary has no rights with respect to the property until the owner's death. To be enforceable at such time, the deed must otherwise qualify as a recordable, inter vivos deed, must state that the transfer occur upon death, and must in fact be recorded with the county recorder's office.

Under the URPTODA, a designated beneficiary may disclaim the real property that would otherwise pass to them under a transfer-on-death deed but need not take any affirmative action in order to succeed to ownership of the property. However, individual state laws vary on this point; in at least one state (Oklahoma), the designated beneficiary must affirmatively record an affidavit accepting such interest or the property will revert back to the decedent's estate.

The URPTODA offers a solution that is preferable to other informal mechanisms for avoiding probate, such as executing but not recording a deed (a "sleeping deed") or naming a non-spouse beneficiary as a joint owner of a real property. However, utilizing a transfer-on-death deed is inferior in almost every way to executing and recording a traditional deed to a revocable living trust. For a good summary of these relative drawbacks, see page 34 of a recent issue of the Utah Bar Journal, located here.  In short, the URPTODA provides a new alternative for transferring real property to an heir outside of probate, but it will rarely be the best alternative.

Read More

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.

Read More

Affidavit of Heirship and Identity

When someone dies, the heirs or devisees of the decedent generally wish for the decedent's assets, or the proceeds therefrom, to be transferred from the decedent's name to them. Depending on the asset, this process can be easy. For example, a brokerage account with a valid beneficiary designation can be re-titled in the name of the designated beneficiaries; the designated beneficiaries simply need to provide prove of their identity and the fact of the decedent's death to the financial institution.

The asset transfer process can also be difficult. If that same brokerage account is not associated with a valid beneficiary designation, the heirs may have to go through the probate process. Probate can be defined as the court-supervised process whereby a personal representative is appointed to administer an estate, the decedent's will (if any) is validated, assets are sold, creditors paid, and the remaining funds distributed to the heirs.

The Uniform Probate Code provides a number of alternatives to supervised probate administration. Unsupervised formal probate and unsupervised informal probate administration options are available and are common in Utah. A "small estate affidavit" is also a popular alternative and requires no court involvement at all. Any person claiming to be a successor can sign an affidavit saying they are entitled to property, and any person having custody of that property can transfer it without liability to the person presenting the affidavit if certain other statutory requirements are met.

A less-common alternative is an Affidavit of Heirship and Identity. The basis for such an affidavit is found in section 75-3-901 of the Utah Code, which makes it clear that, even without administration, heirs are entitled to receive estate assets: "Persons entitled to property by... intestacy may establish title thereto by proof of the decedent's ownership, his death, and their relationship to the decedent." Accordingly, only intestate heirs (not devisees under an unprobated will) can potentially use an Affidavit of Heirship.

Most third parties with custody of a decedent's property will prefer a small estate affidavit due to the protective provisions of section 75-3-1202 of the Utah Code. However, since a small estate affidavit cannot be used to change title to real estate, a transfer of an interest in real estate is the primary situation where I have seen a Affidavit of Heirship used. Unfortunately, title companies and title insurers do not usually permit Affidavits of Heirship when facilitating the transfer or insuring title of real property. Thus, while it is rare that an Affidavit of Heirship would be needed, it is another probate-avoidance tool that can be used in certain circumstances.

Read More

Update to Utah Probate Code

An update to the Utah Uniform Probate Code, H.B. 402 Probate Code Amendments, is effective May 8, 2018. It makes changes relating to guardianships, conservatorships, and powers of appointment, but since I recently discussed the provisions relating to probate proceedings at an NBI seminar, that is the focus of this post.

As I wrote in April, since 2013 the Utah Code allows the appointment of a personal representative or special administrator beyond three years after a decedent’s death. Since that time, a number of amendments to the probate code have been enacted to clarify what is allowable in the case of an appointment of a personal representative more than three years after death, and H.B. 402 is no exception.

By way of background, a surviving spouse and/or minor children are generally entitled to a homestead allowance of $22,500; an exempt property allowance of $15,000 worth of household furniture, automobiles, furnishings, appliances, and personal effects; and a family allowance of up to $27,000 for their maintenance during the period of administration. Such allowances generally have priority over all unsecured claims against the estate.

H.B. 402 clarifies that the homestead allowance, exempt property allowance, family allowance, support allowance, elective share of a surviving spouse, and a claim other than for an expense of administration may not be presented against the estate, even though a personal representative was appointed, if the appointment occurred more than three years after death. While not a significant change, this amendment further clarifies the nature of such an appointment proceeding.

Read More

Important New Probate Law in Utah

Earlier this week, Utah S.B. 241, Chapter 443, "Medical Benefits Recovery Amendments," was signed into law. By way of background, the Utah Office of Recovery Services seeks reimbursement for Medicaid expenses the state has paid on behalf of an individual from that individual's estate after death in order to supplement medical assistance programs and limit tax burdens. This law is intended to improve the state's ability to recover medical assistance it has provided.

The law does this in part through the enactment of new section 75-3-104.5 of Utah's probate code, which is effective as of May 8, 2018.  This section requires a petitioner or personal representative to send copies of pleadings relating to any "action" under Chapter 3, Probate of Wills and Administration, to the Office of Recovery Services. Such pleadings must be sent by certified mail within 30 days after the filing of the action. Failure to do so "tolls all limitations concerning the state's presentation or enforcement of a lien or claim" under the estate and trust recovery statute. This new law applies to all actions involving a decedent who was 55 or older.

The address to which pleadings must be sent is:
Office of Recovery Services
Bureau of Medical Collections
PO Box 45025
Salt Lake City, UT 84145-0025

The law is notable for requiring all pleadings for all actions filed under Chapter 3 to be provided to the Office of Recovery Services, when presumably the only information really needed to protect the state's interests is the identifying information of the decedent. Furthermore, only certified mail is effective to avoid the tolling of the statute of limitations. It will be interesting to see if these provisions are relaxed in the near future.

Read More