Updated: Nov 24, 2020
Anyone else a fan of The Office? There is an episode where Michael Scott (Steve Carell) decides to go through bankruptcy. He looks into it and finds that it just requires that a person “Declare Bankruptcy” so he goes around yelling “I DECLARE BANKRUPTCY!” Don’t remember that episode? Here is a link to the clip: Office Clip.
People all the time tell me that they want to avoid probate, and some even think that they have done it. In Utah, probate can be a very simple process if you have done some prior planning. So, here are some common questions people ask about probate and hopefully after reading we can do something more than just running around screaming “I AVOID PROBATE!”
Q: What is probate?
A: Probate is a process by which the court validates the authenticity of a will; appoints an executor (aka personal representative); and supervises the settlement of an estate, including the payment of bills, filing of tax returns, and transfer of assets to beneficiaries. If there is no will, the court will appoint an estate representative, called an "administrator." The administrator carries out the same duties as an executor; but when a person dies without a will the court must determine the heirs of the deceased. In Utah this will be limited to descendants and other family members, but will not include friends or any charities. Here is a link to the Utah Court’s Probate Website: Probate
Q: How do I avoid probate?
A: Only assets in your individual name or payable to your estate will go through probate. Many folks use a revocable living trust to avoid probate. However, the trust has to actually own the assets before you pass in order to be of any use. If you have used some software to create a trust or printed one out from the internet but haven’t moved your assets into the name of the trust, your trust is essentially a car with no working parts-it might look good, but won’t go anywhere. Some assets may avoid probate without the use of a trust, for example contract assets like life insurance, retirement accounts, and annuities as well as assets owned by joint tenants with rights of survivorship. These assets will generally not go through probate if the beneficiary forms are correct.
Q: Is probate bad?
Many people, but not all, think so. The difficulty and expense of probate varies from state to state and from family to family because of differences in state laws, family goals and personalities, and assets. Many clients wish to avoid probate because it’s a public process, time consuming, and costly. We’ll take a look at your entire situation together and let you know whether a probate avoidance plan should be part of your estate plan.
Q: Why should I avoid probate?
Most people want to avoid probate because it can include high fees and costs, significant time delays and stress, and public dissemination of private information. What do I mean by public? In most cases, court records are public records, meaning that anyone could get a copy of your will, the estate’s inventory, and other information you might wish to keep private. The ease of accessing this information does vary from state to state, and sometimes even from county to county. Here in Utah, all court records are available online, allowing anyone with an internet connection to see a listing of your assets, debts, beneficiaries, and who got what. If you’re like most people, you want to keep your family affairs and finances private, so probate should be avoided to the greatest extent possible. See some of my other posts for a more in-depth consideration of this question, or just give me a call and I can answer your specific questions.
Have some questions that aren’t answered here about probate? Wonderful! Give me a call or text at 435-777-4740 and let me show you what it feels like to be your attorney’s top priority!