James R. Balmforth: Land Encroachment

I get asked lots of questions as a real estate lawyer. One recently was: What is an Encroachment?

Generally, no person has the right to build any structure on his own land so that part of the structure, no matter how small, encroaches or extends onto the land of another. If one person’s property extends beyond his boundaries and encroaches on the adjoining land of another, this is an encroachment of land. It doesn’t matter whether the encroachment is above or below the surface of the land. A Utah encroachment attorney can help you determine whether something is an encroachment.

The consequences of encroachment of land can range from simple nuisances, like tree branches hanging over your neighbor’s land, to being sued for actual damages or removal of the encroachment. Depending on whether the injury to the land is permanent or temporary, damage amounts and remedies can vary. Property law is complicated. The laws and regulations governing encroachment of land issues vary by state, and your rights and obligations can differ depending upon the municipality. A good encroachment lawyer in Utah can help advise you of those rights and duties.

For example, when a client is purchasing a house or other real estate, title searches and surveys will be obtained and reviewed to see if any encroachments exist regarding the property. The disclosure of the existence of an encroachment may result in a transaction being cancelled or a lender refusing to approve a mortgage.

Healthcare Proxy

Utah law provides that a person can sign a Health Care Proxy and appoint another person to make health care decisions in the event they become unable to make decisions for themself. Utah health care proxy lawyers are familiar with Article 29-C of the Utah Public Health Law (“PHL”) which contains the provisions regarding Health Care Proxies. This statute is entitled “Health Care Agents and Proxies” and begins with Section 2980 of the PHL.

Section 2981 of the PHL provides that an adult who is competent can appoint someone as his health care agent by using a Health Care Proxy that he signs and dates which is witnessed in the presence of two witnesses who are adults who also need to sign the proxy. An example of a form of Health Care Proxy is contained in the statute.

Your agent can be given the broad ability to make most any health care decision for you or you can limit the agent’s authority by specifying the types of decisions you would like the agent to make on your behalf. Section 2982 of the PHL provides that when an agent is making decisions the agent must act in accordance with the principal’s wishes which includes their moral and religious beliefs or, if not known, in accordance with their best interests.

Wills and Probate Court

Probate is the process by which a person’s last will is validated by the Court. When a person dies, the Last Will is filed with the Court. The probate proceeding involves the preparation and presentation to the Court of various papers and notice to the decedent’s next of kin. These individuals are called distributees. Wills and probate court can be very complex, and a Utah wills and probate lawyer may be helpful to assist you.

The initial papers filed with the Surrogate’s Court are usually the Probate Petition, the Last Will and the decedent’s death certificate. The probate petition must contain very specific information regarding the decedent and the distributees. Sometimes there may be a need for preliminary Court filings. For instance, if the decedent died at home and the police department was called and the home was sealed, the Court can issue an order allowing a person to search the home to look for a possible Last Will. If a Will is found, it can be filed with the Court and the probate process can be started. Also, sometimes a person is withholding a Last Will and refuses to file it with the Court for the probate process to begin. When this occurs a petition can be filed with the Court to force the person to appear in Court and produce and file the Will. On the Court date the Court can direct that the Will be produced for probate.

In most instances, the probate proceedings are straight forward and the Last Will is admitted to probate or validated by the Court. The Court will then generally appoint an Executor who can administer the estate and distribute the estate assets according to the Will provisions.

Occasionally, the validity of the Last Will may be contested or the Court may determine on its own that certain formalities or aspects of the Last Will presented to it prevent the Court from admitting it to probate. A wills and probate lawyer can help Utah residents understand this process. There are numerous procedures that can be involved with determining the validity of a Will. One common process is provided by the Utah Surrogate’s Court Procedure Act Section 1404. This statute allows certain persons who are interested in the estate to obtain information and pre-trial testimony regarding the preparation and the execution of the Will. Testimony can be obtained from the attorney who drafted the Will and the witnesses who signed the Will when it was executed by the decedent. If there appears to be valid problems regarding the Will, objections can be filed and there can be a trial of the Will Contest.

Since the decedent is no longer alive to tell or explain his or her desires, it is up to the Court to make sure that the Last Will filed with the Court is a valid document expressing the decedent’s wishes. Wills and probate Court protect the decedent’s estate plan.

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