In Estate of Strand (Nupetco Associates, LLC v. Dimeo), 2012 UT App. 144, the Second District Court of Appeals held that the probate court had the authority to appoint a personal representative for the estate even though more than three years had elapsed since the decedent’s death.
The ruling in Strand seems reasonable and pragmatic, but does run contrary to conventional wisdom in Utah. Utah Code §75-3-107(3) provides that if no will is probated within three years of death, the decedent is presumed to have died intestate. Section 75-3-107(1) provides that “[n]o informal probate or appointment proceeding or formal testacy or appointment proceeding, other than a proceeding to probate a will previously probated at the testator’s domicile and appointment proceedings relating to an estate in which there has been a prior appointment, may be commenced more than three years after the decedent’s death.” It has generally been assumed, therefore, that if no will is probated within three years of death, court involvement would thereafter be limited to a petition for determination of heirship.
The court in Strand, however, looked to the language of §75-3-107(3), which states that, where the presumption of intestacy has arisen, “[t]he court has continuing jurisdiction to handle all matters necessary to distribute the decedent’s property, including jurisdiction to determine what property was owned by the decedent at the time of death.” In Strand, there appear to have been some title issues related to the decedent’s real property. In an effort to fashion a practical solution, the court reasoned that a probate court must rely on a personal representative to do the “leg work” necessary to assist the court in determining what property is held in the estate and how that property should be distributed. The court observed that a probate judge cannot be expected to personally inventory the decedent’s property. The court also noted that the definition of “personal representative” includes a special administrator, and the court may well have viewed the appointment in that context.
For a detailed discussion of limitations periods in probate matters, see Section 7.24.7 of The Utah Law of Trusts & Estates, an online legal reference treatise available at The Utah Trust & Estate Educational Resource Center.
Rust Tippett is the author of this blog post.
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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.