A revocable trust is used to avoid probate. As described in the preceding blog post, probate in Utah is not as cumbersome as it is in some other states. In Utah, a petition for informal probate can be approved by the court clerk, and the executor can be appointed without a hearing before a judge. The executor will then have the authority to administer and close the estate without judicial involvement.
Nonetheless, there are several good reasons to have a fully-funded revocable trust – even if you are a Utah resident.
Avoid a Conservatorship. Probate may be comparatively easy in Utah, but a conservatorship is never easy anywhere. A fully-funded revocable trust can avoid the need for a messy, expensive court-supervised conservatorship in the event you become incapacitated.
Out-of-State Real Property. If a Utah decedent owns out-of-state real property at death, probate can be very inconvenient. A probate will first need to be opened in Utah. The Utah executor will then need to open an “ancillary” probate in the state where the real property is located. If the real estate is located in a state that has not adopted the Uniform Probate Code’s streamlined probate procedures, the ancillary probate may be administratively difficult and expensive. On the other hand, if the property is held in the decedent’s revocable trust, the successor trustee of the trust will hold legal title and will be able to distribute the property to the beneficiaries or sell it to a third party, all without getting the court involved.
Move to Another State. Even though probate in Utah is relatively simple, if you move to another state, your will will be subject to probate in that state. If you move to a state with burdensome probate procedures (like California), your heirs will wish you had a revocable trust. With a fully-funded revocable trust, you may be able to avoid probate entirely.
Emergency Administration. If, for some reason, action needs to be taken immediately after the decedent’s death, as for example, where a large transaction is scheduled to close shortly after death, where litigation involving the decedent is pending, or where a statute of limitations is about to expire, a special administrator can be appointed by a judge on an emergency basis. But if the decedent has a fully-funded revocable trust, the successor trustee of the trust will have the authority to act without obtaining court approval.
Privacy. When a probate is opened, the decedent’s will becomes a matter of public record, available for inspection by anyone and everyone. If the decedent simply left his or her estate to his or her children in equal shares, privacy might not be of much concern. But if the dispositive plan is at all unusual, the decedent will probably not want it to be a matter of public record.
Rust Tippett is the author of this blog post.
Copyright 2012 UNLEPI, LLC, a Utah limited liability company. All Rights Reserved.
This blog post in no way creates an attorney-client relationship between the reader and either Robert S. (Rust) Tippett or Bennett Tueller Johnson & Deere, P.C. The reader should consult with his or her own estate planning attorney regarding his or her particular circumstances.