Probate is a court-supervised process by which a decedent’s assets are distributed to the persons who are entitled to them (both estate beneficiaries and creditors of the decedent), and by which those persons obtain clean title to the property.
Historically, probate was a lengthy, inconvenient and expensive process. A court hearing was required to appoint the executor for the estate. Once appointed, the executor was required to file an inventory of the estate assets with the court, to notify and pay the decedent’s creditors, to liquidate estate assets, to distribute the estate funds to the beneficiaries, to provide an accounting to the beneficiaries and to close the estate. Many (perhaps all) of these steps would require approval by a judge at a formal hearing. Thus, it was not uncommon for a probate to require half-a-dozen court hearings, each of which had to be scheduled weeks in advance and each of which required the attendance of the estate’s attorney. Such a cumbersome process is still followed in some states, like California.
Utah has adopted the Uniform Probate Code, with its greatly stream-lined probate procedures. In Utah, the executor can be appointed by the court clerk, without a hearing before a judge. Once appointed, the executor has the authority to administer the estate, to distribute the trust property and to close the estate, all without court involvement. This simplified process is known as “informal probate.” Of course, if an estate beneficiary objects to the executor’s actions, the beneficiary can file objections with the court and obtain a hearing before a judge. The resolution of those objections is what is known as “formal probate.”
Thus, under the traditional system, extensive court supervision ensured that the decedent’s property was distributed to the beneficiaries who were entitled to it and that all required procedures were properly followed. Under Utah’s system, that function is served by the ability of the beneficiaries to file objections.
Under the traditional system, a beneficiary obtained clean title (as, for example, to real estate) through the court’s Order for Distribution, which would expressly state that the identified property was to be distributed to the named beneficiary. The Order itself would then be recorded in the County Recorder’s Office, just like a deed. In Utah, the executor has the authority (without court approval) to sign the deed transferring the property from the estate to the beneficiary. The executor’s deed gives the beneficiary clean title. Similarly, if the executor sells the property to a third party, the executor may sign the deed without first obtaining court approval, and the deed gives the buyer clean title. Under the traditional system, the court would have had to approve the sale.
For a discussion of probate in the context of a Utah estate plan, go to Basic Utah Estate Planning Information on this site.
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.