James R. Balmforth: Probate a Will

Because I am a probate lawyer, I’ve often asked about how to probate a will.

Probate is the procedure by which a person’s Will is given validity by the Court. The probate Utah State process can be complex. A formal petition, the original Will, witness affidavits and proper notice to family members and others are among the papers required in the Utah State probate process.

Probate of a Last Will occurs in the Surrogate’s Court. For the most part, there is a Surrogate’s Court located in each county in Utah such as the Queens Surrogate’s Court, Kings Surrogate’s Court and Utah Surrogate’s Court.

The Utah Probate Process is guided by two primary sources of law. One is the Estates, Powers and Trusts Law (“EPTL”) and the other is the Surrogate’s Court Procedure Act (“SCPA”). These statutes, along with various Court decisions and rules, provide the basis for probating a Utah Will. When a person dies without a Last Will, such a situation results in an Intestate Estate. The statutes provide different procedures in these cases, as a state probate lawyer in Utah can explain. Whether an estate is subject to probate or intestate administration proceedings, the Surrogate’s Court requires that it be provided with all detailed information regarding a decedent including names and addresses of next of kin (“distributees”) and assets.

It may not always be easy to provide complete information as to a person’s next of kin. In many instances, where the only surviving relatives are cousins or more distant relations, such person’s whereabouts and family connection to the decedent can be hard to find and to prove. Relatives might be scattered throughout many states or countries and they may not have had any contact with the decedent for decades, if at all. These issues are often resolved in Kinship Hearings. These hearings require that the Court be provided with the testimony of disinterested persons and certified records such as birth, death and marriage certificates all of which are needed to demonstrate kinship to the decedent.

The vast majority of Probate cases do not involve Estate Litigation such as Will Contests or persons contesting a Will. However, these types of controversies do arise on occasion and require extensive involvement by Utah Probate Lawyers to resolve. In the case of a Will Contest, SCPA Section 1404 provides an aggrieved party the opportunity to examine documents relating to the preparation of the Last Will and to take the testimony of the attorney who drafted the Will and the Attesting Witnesses, even before any formal objections to the Will are filed.

Buy-Sell Agreements

It is important for small business owners to consider the consequences and retain a lawyer if one of the owners dies or becomes incapacitated. Such events may jeopardize the continued management or operation of the business. Additionally, the economic effect on the surviving or continuing owners, as well as the family of the departing owner, needs to be taken into account by a Utah City business lawyer.

Buy-sell agreements between business owners in Utah City and elsewhere are designed to resolve these types of situations. Simply stated, these agreements provide procedures whereby one owner or the business itself can purchase the interest of the departing owner. As a result, the operation of the business is not interrupted and the departing owner or his or her family can obtain a payment for his or her interest in the business. Such a payment may not be available in an open market.

Free Consultation with a Probate Lawyer

If you are here, you probably have a probate or estate issue you need help with. If you do, call Ascent Law for your free consultation (801) 676-5506. We want to help you.