James R. Balmforth: How Soon Must A Probate Be Filed?

In Utah, there are no time limits when applying for Probate, although it’s possible that you won’t be able to deal with your loved one’s affairs until you’ve got a grant of Probate, so you might not want to delay for too long. There are also time limits with regards to submitting an Inheritance Tax return which you need to be aware of.

Time Limit for Probate

After a loved one dies, going through the legal process of Probate is likely to be the last thing you want to do. Understandably you need the time to grieve, and to make practical arrangements like organizing the funeral and securing their empty property. However, at some point you’ll need to find out whether or not Probate is needed. Probate is the process you have to go through in order to get the legal authority to deal with a deceased person’s affairs.

This means that although there aren’t any time limits, you might not want to wait too long before starting the Probate process. You won’t be penalized for delaying, it’s just that all these assets will effectively be ‘in limbo’, as no one will have the legal authority to manage them. Additionally the beneficiaries may become impatient and ask that you step down from your role as Executor or Administrator.

Time Limit for Inheritance Tax

There is one time limit that you need to bear in mind, and that relates to Inheritance Tax and filing of the Inheritance Tax returns. If the short Inheritance Tax Return Form is used, there is no deadline to submit the form. However, if the long Inheritance returns Form is used then it must be submitted within a year of the death of your loved one. If Inheritance Tax is payable, it must be paid within six months of the death. If you fail to meet this six month deadline, you could incur additional interest or financial penalties.

Again, if you are the Executor or Administrator of the Estate, failing to submit an Inheritance Tax return in time could prompt the beneficiaries to complain. Beneficiaries can even ask a Court to remove an Executor.
How quickly the will is probated depends first on how quickly it is filed with the court. The length of time it takes for probate to be completed then depends on a variety of factors. The more valuable the estate and the larger the assets, the longer it may take. An estate with many creditors and bills will also require a longer process. If anyone contests the will, the process will be delayed. Smaller estates with few assets and debts may move more quickly. In most cases, a will is probated and assets distributed within eight to twelve months from the time the will is filed with the court.

Probate has a reputation for lasting just short of forever, but is this always the case, it depends on many factors. Some estates settle or close within a few weeks or a few months, while others can take a year or longer.
The probate process involves a good many steps, all of them necessary to move assets from the ownership of a deceased individual into the ownership of a living beneficiary. His taxes and outstanding debts must be paid as well before this can happen.

All this often chugs along under the supervision of the probate court, and this can further slow things down. The process can slow to a crawl when there are complications. Many deadlines follow a person’s death as his estate is being probated in Utah. Probate is the process by which courts make sure that a deceased person’s debts are paid and property distributed to his heirs. Deadlines in this process must be satisfied in order for the process to proceed smoothly.

Petitioning the Court

The custodian of the will must deliver the will to the superior court and provide a copy to the named executor within 30 days of learning of the death. The Utah Probate Code states that failure to share these documents in a timely fashion creates liability “for all damages sustained by any person injured by the failure.” This step is often done in conjunction with filing a Petition for Probate.

Petition Deadline

The probate process begins when the executor files a Petition for Probate. If the decedent left a will, this document is characterized as a Petition of Will and for Letters Testamentary. If the will does not name an executor, it is a Petition of Will and for Letters of Administration with Will Annexed. If there is no will, the document is a Petition for Letters of Administration. The Petition for Probate must be filed within 3 years after the date of death or the statute of limitations will expire. You can, and should, file before that time period. We suggest filing right away.

Contesting Probate

After the will has been admitted to probate, the court appoints an executor or administrator by issuing Letters Testamentary or Letters of Administration. The law provides that any interested person may contest the admission of a will to probate as long as they petition the court within 120 days after the will has been admitted to probate. The petition must state the basis for the objections.

Creditor Claims

The executor of the estate publishes a Notice of Petition to Administer Estate in the legal notice section of a local newspaper. This publication provides notice to the decedent’s creditors. After publication, the executor must file an affidavit of publication with the court, indicating he has complied with the law. Creditors have four months after the date letters are first issued to the executor or 60 days after a notice of administration is delivered to the creditor.

Filing the Inventory

The Utah Probate Code requires the executor or administrator to file an inventory and appraisal of the decedent’s property with the court within four months of the Letters Testamentary or Letters of Administration being issued. Depending upon the circumstances, courts may extend this time limit.

Tax Concerns

If the estate earns income after the decedent dies, the estate is liable for taxes assessed on that income. This is different from the decedent’s final tax return, which reflects taxes assessed on money earned while she was alive.

The quickest routes to transfer estate assets are through independent administration, monument of title, or avoiding probate altogether. If you must, however, go through formal probate of an estate, the process can drag on for years. The executor does not even have to file for probate for four years. Usually, however, people file wills with the probate court somewhere between couples of months to a year after the death. With formal administration, just the notices to the public, to creditors, and to the beneficiaries can take several months. The judge will have to decide whether to admit the will to probate. There will be multiple hearings along the way. Formal probate can take years, depending on the complexity of the estate and whether creditors or beneficiaries get involved.

The executor, sometimes called the personal representative, is in charge of managing the estate through the probate process. Sometimes, with larger estates, an attorney might be involved as well. Where the personal representative lives in relation to where the attorney is located might not seem like a big deal in this day and age with all the modern technology we have at our fingertips. But the distance between the personal representative and the attorney can indeed make a difference. When a personal representative is located close to the attorney’s office, she can pop in to take care of problems on a moment’s notice. If she lives far from the office or in another state, quick meetings just can’t happen. And keep in mind that almost all documents that are filed with the probate court require the original signature of the personal representative. Faxed or emailed signatures won’t do. The closer the personal representative is to the attorney, the more quickly things will get gone.

Probate will take longer as the number of beneficiaries of the estate increases, particularly if they, too, live far from the probate attorney’s office. This is simply a function of the time it takes to send multiple documents back and forth between numerous people who are located in many different places.

It’s unlikely that any two beneficiaries will agree on everything that must happen with an estate, let alone three, four, or more of them. Some beneficiaries might even hire their own attorneys to monitor the probate process and these types of attorneys tend to nitpick over every single thing the executor does. Suffice it to say that the more the beneficiaries an estate has and the more they find fault with the process, the longer probate will take.

A will contest is a legal proceeding initiated to invalidate a last will and testament. Will contests are based on one of four arguments, or sometimes a combination of them:

• The will was not signed with the proper legal formalities.
• The will was written as it was due to issues of fraud.
• The will was written as it was under duress and undue influence by a beneficiary.
• The deceased lacked the mental capacity to create a will.
The probate proceeding will remain open for a very long time if a will contest occurs. These issues are typically resolved after a lengthy court trial.

A big snarl can occur if the deceased didn’t leave a will. This doesn’t mean that her estate doesn’t have to be probated. It means that the court will be heavily involved in the process every step of the way. The judge will have to appoint an executor because the deceased didn’t nominate anyone in a will. State law will determine which heirs will receive bequests from the estate and in what percentages. Even simple steps in the probate process will take longer than if a will had been available.
It takes longer to probate an estate that owes estate taxes. A taxable estate can’t be closed until a closing letter is received from the Internal Revenue Service and the state taxing authority as well if state estate taxes are also due. It can take anywhere from six to eight months after filing an estate tax return before receiving any type of response from the IRS.

Probate should be relatively simple when an estate is comprised of just a couple of assets, maybe a house and a bank account. The exact rules and requirements can vary by state, but many states make simplified probate options available when an estate isn’t complicated. The total value of the deceased’s probate assets must usually fall below a certain dollar limit. In this case, the probate court will allow the transfer of assets to living beneficiaries based on a small estate affidavit. This type of “probate” can take as little as a couple of weeks. But if the estate is comprised of a house, a bank account, and an interest in the family business, administration can get complicated and drag out.

You can avoid probate of your estate entirely by funding your assets into a living trust. They would pass to living beneficiaries according to the terms stated in your trust formation documents so a probate case never has to be opened with the court. Of course, this assumes that you remember to title all your property in the trust’s name after you form it. You might also consider minimizing your estate by holding title to certain assets in such a way that they’ll pass automatically to living beneficiaries at the time of your death. You don’t necessarily have to go to all the trouble of creating a living trust.

Talk to an estate planning attorney about the possibility of creating a trust, payable-on-death accounts, or holding real estate with someone else with rights of survivorship. Any of these options might minimize your estate so it can qualify as a small estate and pass by affidavit. If the personal representative and the beneficiaries get along, if the assets aren’t complicated, and if the estate isn’t taxable, the probate process could take well less than a year. Otherwise, it can drag on for a year or more.