4.04.25 Decedent's Estates

Does your state use terminology different from that provided in 4:04.1 of the Underwriting Manual? If so, please identify and define such terms. Provide statutory citations.

Title 74 of Utah Code Annotated, 1953 was repealed by Laws 1975, ch.150, § 1, effective July 1, 1977. Terms such as Administrator, Administratrix, Administrator Cum Testamento Annexo, Administrator DBN, etc. became obsolescent terms. Utah adopted Title 75 as the Utah Uniform Probate Code effective July 1, 1977. 53 UCA 75-2-113. At the time of adoption, dower was also repealed, curtesy had not been used for many years.

The term "Representation" is not defined, but is used in the Utah Uniform Probate Code. It means all or any part of the decedent's estate is to pass to the issue of the described person, including the decedent, by representation, that part is divided into as many equal shares as there are living childred of the person and deceased childred of the person who left issue who survive the decedent, even if at the time of the decedent's death all of the childred of the person are deceased, each living child of the person, if any, receiving one share, and the share of each deceased child being divided among the deceased child's issue by representation in the same manner. 53 UCA 75-2-106.

Is there a statutory time limit for (a) probating a decedent's will, or (b) opening administration of an Intestate's estate? If so, specify for both situations. Provide statutory citations.

53 UCA 75-3-107(3) If no will is probated within three years from death, the presumption of intestacy is final and the court shall enter an order to that effect and provide for the distribution of the decedent's property in accordance with the laws of intestacy under Title 75, Chapter 2, Part 1.

53 UCA 75-3-107(4) Presumption of intestacy is final after 3 years. Court retains jurisdiction to determine succession. By implication after 3 years a personal representative is not appointed. I think there is a specific statutory citation, but I was unable to locate it just now.

Does the disposition of property under the laws of intestacy depend upon any of the following classifications of property or rights in property: Community, separate, tenancy by the entirety, dower, curtesy, etc.? If so, summarize. Provide statutory citations.

Dower and curtesy were abolished 53 UCA 75-2-113. No other provision.

Does your state recognize joint tenancies? If so, describe the procedure necessary to pass title held in joint tenancy upon the death of a joint tenant. Provide statutory citations.

UCA 57-1-5 provides for joint tenancies. No specific statutory scheme exists for terminating joint tenancies, however, current title practice is to require an affidavit reciting the death, legal description of the land, and other pertinent details to which is attached a certified copy of a death certificate. Since no document may be recorded without a legal description, the affidavit is necessary. The affidavit serves a dual purpose when a name variance is evident.

Does your state provide for any special benefits to a surviving spouse or family that allow them to take property contrary to will provisions? Provide statutory citations.

53 UCA 75-2-201, et seq. provides for an elective share for the spouse in the augmented estate that must be elected with 1 year of the date of death or within 6 months after probate of decedent's will, whichever last expires 53 UCA 75-2-205. 53 UCA 75-2-301, et seq., provides for omitted children and spouse. 53 UCA 75-2-401, et seq., provides for homestead allowance and family allowance.

Summarize the steps required for a testate administration. Provide statutory citations.

Filing of petition for administration and appointment of personal representative. 53 UCA 75-3-103. Petition for order from the Registar or order from court admitting will to probate. 53 UCA 75-3-102. Determination of creditors claims. 53 UCA 75-3-104. 53 UCA 75-3-803. Distribution. 53 UCA 75-3-901, et seq. Closing of estate. 53 UCA 75-3-1001, et seq.

Summarize the steps required for an intestate administration. Provide statutory citations.

Same as bulleted item 2. Determination of creditors claims. Determination of Heirship and distribution, closing of estate.

Is there a procedure or documentation customarily accepted by the bar to indicate heirship which is not based on a statute or cases? (e.g. Affidavits of Heirship) If so, describe the procedure and furnish a sample of any forms.

Instead of performing a determination of heirship, some will record an affidavit of heirship. Many title companies will not insure through such an affidavit. To date I have only approved the use for collateral interests, i.e., correction deeds, releases of mortgage, etc.

Are there any short or abbreviated probate procedures provided for by statute? If so, summarize. Provide statutory citations.

No information at this time.

Are there any other probate or alternative probate procedures available in your state that haven't been described? If so, summarize. Provide statutory citations.

No information at this time.

Does your state statutes provide for an "inheritance" tax? Estate tax, but not lien. If so, is it based on (a) an heir's share of the estate or (b) is it an estate tax on the total value of the estate, or (c) on another basis? When must the inheritance tax return be filed? Provide statutory citations.

53 UCA 75-3-916. Such taxes are payable by the distributee or the personal representative of the estate based upon the proportionate interest of each person to the total estate.

Does your statutes provide for an inheritance tax lien? If so, summarize, e.g. What are the requirements for (a) attachment, (b) perfection; and (c) enforcement of the inheritance tax lien. Is there a statute of limitations for the inheritance tax lien? If so, specify. Provide statutory citations.

Estate tax, but no lien.

The question concerning statute of limitations is not applicable.

Summarize the steps of the procedure for the sale of real property during the pendency of an intestate administration. Provide statutory citations.

53 UCA 75-3-714 enumerates power of personal representative. Includes power of sale of lands unless contrary indication on letters. Letters are recorded with a certification date not exceeding 30 days old, recordation of deed.

Can a personal representative for a testate administration sell real property of the estate without obtaining a court order? Yes. If so, please identify any requirements?

Same as bulleted item above. Any limitations? If an heir demands a formal order and/or hearing, then it goes that way, otherwise, no limitation. Provide statutory citations. 53 UCA 75-3-710 Powers of Personal Representative same as a person has over their own property and may be exercised without order unless otherwise provided.

When, if ever, must a personal representative of a testate administration obtain a court order to sell real property of the estate? Summarize the steps of such procedure. Provide statutory citations.

When the estate has been converted to a formal or supervised proceeding, then they must simply petition for an order of sale.

Does your state statutes provide for the probate of foreign wills (wills of testators not domiciled in your state)? If so, summarize the provisions and procedures. Provide statutory citations.

Venue for probate 53 UCA 75-3-201 county where decedent had domicile or if decedent not domiciled, then where property of decedent was located. 53 UCA 75-4-101, et seq. deals with foreign proceedings. Foreign Personal Representatives send affidavit reciting particulars of death along with certified copies of letters, will and order admitting will, if any, 53 UCA 75-4-204, et seq.