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Abstract of Utah Trust & Estate Law

The following are brief statements of Utah law on selected topics of interest to non-Utah lawyers. They are intended only as quick reference tools. Each topic is discussed in greater detail in the on-line treatise “The Utah Law of Trusts & Estates,” which also appears on this website. References to the applicable sections of the treatise are provided. Non-lawyers should not rely upon this information in making estate planning decisions, but should instead consult with their estate planning attorneys.

Uniform Laws Enacted in Utah

Utah has enacted the following Uniform Codes and Uniform Laws that pertain to trust and estate matters:

Uniform Act Code Reference Treatise Reference
Uniform Fiduciaries Act §22-1-1 et. seq. Section 8.9
Uniform Principal & Income Act §22-3-101 et. seq. Section 8.16
Uniform Probate Code Title 75 entire treatise
Uniform Testamentary Additions to Trusts Act §75-2-511 §3.5.7; §4.5.3
Uniform Simultaneous Death Act §75-2-702 §3.10.9
Uniform Statutory Rule Against Perpetuities §75-2-1201 et. seq. §8.2.12
Uniform Estate Tax Apportionment Act §75-3-916 Section 13.4
Uniform Guardianship and Protective Proceedings Act Title 75, Ch 5 Ch 9
Uniform Durable Power of Attorney Act §75-5-500 et. seq. Ch 10
Uniform Transfers to Minors Act Title 75, Ch 5a Ch 11
Uniform Transfer on Death Security Registration Act §75-6-300 et.seq. §1.4.1
Uniform Trust Code Title 75, Ch 7 Ch 4, Ch 8
Uniform Prudent Investor Act §75-7-901 et. seq. §8.6.14

Property Subject to Disposition at Death / Utah is Not a Community Property State

A Utah decedent has the ability to dispose of all property that is titled in his or her name at the time of death.

Utah is not a community property state. Utah does draw a distinction between marital property and separate property, but the distinction is relevant only for divorce. The distinction is not relevant for determining what property the decedent may dispose of at death. The one exception to this rule is that the distinction between marital and separate property is used in calculating the surviving spouse’s elective share. Utah Probate Code §75-2-201.

Real estate held by a married couple “as husband and wife” is deemed to be held in joint tenancy with right of survivorship. Real estate held by a married couple without such a designation is deemed to be held as tenants in common. Utah Code §57-1-5.

A bank account that is held in the name of a decedent and one or more other persons is a “joint account” under Utah Probate Code §75-6-101(4) and passes to the surviving owner or owners pursuant to §75-6-104(1), unless there is clear and convincing evidence of a different intention at the time the account is created. In general, it appears that the same rule applies to securities and brokerage accounts held in multiple names. §75-6-303.

(See treatise §1.4.1 for a discussion of these issues.)

Summary of Utah Intestate Succession Laws

If the decedent is survived by a spouse, and if all of the decedent’s descendants are also the surviving spouse’s descendants, the surviving spouse is entitled to all of the property that passes under the rules of intestacy. Utah Probate Code §75-2-102.

If the decedent is survived by a spouse, and if the decedent is survived by one or more descendants who are not the surviving spouse’s descendants, the surviving spouse is entitled to $75,000 plus one-half of the balance of the intestate property. Adjustments are made for non-probate transfers to the surviving spouse. §75-2-102.

Property not passing to a surviving spouse is distributed to the decedent’s descendants per capita at each generation. (See below for an explanation of the per capita at each generation method.) Adjustments are made for non-probate transfers to such heirs. §75-2-103.

If the decedent is not survived by either a surviving spouse or any descendants, the intestate property passes to the decedent’s parents. If neither of the decedent’s parents survives the decedent, the intestate property passes to the descendants of the decedent’s parents per capita at each generation. If the decedent is not survived by any parents or descendants of parents, one-half of the intestate property passes to the decedent’s maternal grandparents or to their descendants per capita at each generation, and one-half passes to the decedent’s paternal grandparents or to their descendants per capita at each generation. If the decedent is survived by none of the foregoing persons, the property passes to descendants of the decedent's predeceased spouse. Adjustments are made for non-probate transfers to such heirs. §75-2-103

(See treatise Sections 2.3 and 2.4.)

Distribution Methods in Utah / Per Capita at Each Generation

The default method of distribution in Utah is the per capita at each generation method. This method applies where the decedent dies intestate. Utah Probate Code §75-2-103 and §75-2-106. It also applies where the will or trust directs distribution to a person’s issue or descendants but is silent as to the method of distribution to be applied. §75-2-708. Of course, where the will or trust specifies a different method of distribution, the will or trust governs. §75-2-709.

Under the per capita at each generation method of distribution, each living child receives one share, and one share is assigned to each deceased child who left surviving descendants. The shares assigned to deceased children are all aggregated and divided equally among their children. §75-2-106 and §75-2-709.

(See treatise Section 1.6 for a more detailed discussion.)

Utah has a Streamlined Probate System

Utah has adopted the Uniform Probate Code. The probate process is thus relatively simple and requires minimal court involvement. Unless a party petitions the court for judicial resolution of a matter, an estate can be probated without any hearings before a judge. Everything can be handled through the clerk at the filing window. The personal representative has the authority to distribute property and sign deeds. (See treatise Section 7.5 for a more detailed discussion.)

Special Administration Available

If a personal representative must be appointed on an emergency basis, Utah allows for the appointment of a special administrator. Utah Probate Code §75-3-614 through §75-3-618. (See treatise Section 7.10.)

Ancillary Administration

Utah has procedures available for ancillary administration. They are found at Chapter 4 of the Utah Probate Code (§75-4-101 et. seq.) (See treatise Section 7.11.)

Small Estate Affidavit Procedure

No probate is needed in Utah if the total amount of the decedent’s property that would otherwise be subject to probate is less than $100,000 and if none of the property is real property. An affidavit will suffice to give banks and brokerage firms holding the property the authority to distribute it to the persons entitled to it. Utah Probate Code §75-3-1201 through §75-3-1204. (See treatise §7.5.3.)

Revocable Trusts are Valid in Utah

Revocable trusts are valid and commonly used in Utah. No particular vesting language need be included in the trust in order for it to be valid. (See treatise Section 4.2 for a detailed discussion of this topic.)

Execution Requirements for Wills

A will must be witnessed by two persons, each of whom must see the testator either sign the will, acknowledge her signature or acknowledge the will, and each of whom must sign the will as a witness within a reasonable period of time thereafter. Utah Probate Code 75-2-502. Utah has enacted a substantial compliance statute that focuses on the intent of the testator. §75-2-503.

Holographic wills need not be witnessed. §75-2-502.

There are no particular execution requirements for revocable trusts or irrevocable trusts.

(See treatise Section 3.5 for a discussion of the execution requirements applicable to wills. See treatise Section 4.5 for a discussion of creation requirements applicable to revocable trusts.)

Surviving Spouse’s Elective Share

A decedent’s surviving spouse may choose to take her statutory elective share in lieu of what she receives under the decedent’s estate plan. In very general terms, the elective share is one-third of the augmented estate. The augmented estate consists of all marital property (i.e. property earned during marriage, including income and appreciation thereon) owned by either the husband or the wife. Utah Probate Code §75-2-201 et. seq. (See treatise Section 6.1.)

Other Family Protection Statutes

Utah provides a $15,000 homestead allowance to the decedent’s surviving spouse or, if there is no surviving spouse, to the decedent’s minor children. Utah Probate Code §75-2-402. In addition, the surviving spouse or, if there is no surviving spouse, the decedent’s minor children, are entitled to $10,000 in furniture, furnishings and personal effects. §75-2-403. In addition, the court may grant a reasonable living allowance to the family for living expenses during the period of administration, not to exceed one year. §75-2-404. (See treatise Chapter 6.)

Enforceability of No Contests Clauses

No contest clauses in wills and revocable trusts are enforceable in Utah only if there is no probable cause for the contest. Utah Probate Code §75-2-515 and §75-3-905. (See treatise Section 4.10 and §7.18.8.)

Utah Asset Protection Trusts

Utah permits self-settled asset protection trusts. The trust must be irrevocable and the words “asset protection trust” must appear in the title. The trust must have a corporate trustee, and at least some of the trust assets must be held in the form of cash or stocks in an account with the trustee. The trust must not provide for mandatory distributions. Utah Code §25-6-14. (See treatise §8.14.8.)

Utah Rule Against Perpetuities

Utah has enacted a version of the Uniform Statutory Rule Against Perpetuities Act. It appears at Utah Probate Code §75-2-1201 et. seq. (See treatise §8.22.13.)

Statutes of Limitations in Utah

The following is a list of Utah limitations periods that pertain to trust and estate matters:

Type of Action Relevant Code Sections Treatise Reference
Probate Matters    
Commencement of Probate §75-3-107 §7.5.1; §7.5.4
Probate of Will   §7.5.8; §7.21.2
    §7.24.7
Will Contests §75-3-107; §75-3-410 §7.18.9; §7.24.7
Creditor Claims §75-3-1005; §75-3-1006;
§75-6-107
§7.24.7; §1.4.1
Improper Distributions §75-3-1006 §7.24.7
Breach of Duty by Personal Representative §75-3-1005 §7.15.12; §7.24.7
Final probate Orders §75-3-410 §7.24.7
After-Discovered Will §75-3-412; §75-3-107 §7.24.7
     
Trust Matters    
Contests of Revocable Trusts §75-7-607 Section 4.10
Breach of Duty by Trustee §75-7-1005 §8.7.10
     
Other Matters    
Wrongful Death §78B-2-304(2) Section 5.6
Spousal Share Election §75-2-211 Section 6.1
Tolling of Actions upon Death §75-3-108; §75-3-802 §7.24.7
Fraud and Mistake §78B-2-305 §1.9.1
Other Relief §78B-2-307 §1.9.1

Utah Anti-Lapse Statutes

Utah has enacted anti-lapse statutes that apply to wills, revocable trusts and beneficiary designation arrangements. The statutes apply where the predeceased beneficiary is a grandparent of the decedent, a descendant of a grandparent of the decedent or a step-child of the decedent. Utah Probate Code §75-2-603, §75-2-706 and §75-2-707. (See treatise §3.7.2 and §4.12.1.)

Utah Wrongful Death Statute

A decedent’s “heirs” under the Utah wrongful death statute are different from the heirs under Utah’s rules governing intestate succession. The heirs for purposes of the wrongful death statute are the decedent’s spouse, children and parents and, in some circumstances, the decedent’s step-children. If the decedent is survived by neither spouse, children nor parents, the decedent’s intestate heirs will also qualify as “heirs” for purposes of the wrongful death statute. Utah Code §78B-3-105 through §78B-3-107. (See treatise Section 5.9.)

Powers of Attorney

The Utah Probate Code authorizes durable, non-durable and springing powers of attorney. Utah Probate Code §75-5-501 and §75-5-502. The Code does not prescribe any execution formalities for powers of attorney. (See treatise Chapter 10.)

Uniform Transfers to Minors Act

Utah has enacted the Uniform Transfers to Minors Act. It appears as Chapter 5a in the Utah Probate Code (Title 75). Under the Utah statute, a custodianship for a minor must terminate when the minor attains age 21. There are three exceptions to this. Custodianships created by personal representatives, by conservators, or by debtors of the minor must terminate at age 18. (See treatise Chapter 11.)

Estate Tax Proration

Utah Probate Code §75-3-916(2) requires that that which creates the tax bears the tax, unless the governing instrument provides otherwise. (See treatise Section 13.4.)

Utah Inheritance Tax

Utah has a pick-up tax. Utah Code §59-11-101 et. seq. (See treatise Section 13.1.)

No Utah Gift Tax

Utah has no gift tax.

Utah Fiduciary Income Tax

For a resident trust, the income tax rate is 5% of state taxable income. Utah Code §59-10-104. “Resident Trust” means either (a) a trust administered in Utah, or (b) a trust that received property on the death of a Utah resident. §59-10-103; §75-7-103. State taxable income is defined in §59-10-201.1.

For a non-resident trust, the income tax rate is 5% of Utah-source federal taxable income. §59-10-204; §59-10-205. Utah source income is defined in §59-10-117.

(See treatise Section 13.5.)

Utah Property Tax

In Utah, property is reassessed yearly, or at the county’s discretion. Transfers are immaterial. Estate planning attorneys, therefore, generally need not be particularly concerned about property tax issues.

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