James R. Balmforth: Utah Probate Code 75-2-702

Requirement of survival by 120 hours–Under probate code or governing instrument Co-owner Exceptions Protection of payers, third parties, and bona fide purchasers’ Personal liability of recipient. Except as provided in Subsection (4), an individual who is not (1) established by clear and convincing evidence to have survived an event, including the death of another individual, by 120 hours is considered to have predeceased the event. Except as provided in Subsection (4), for purposes of a (2) provision of a governing instrument that relates to an individual surviving an event, including the death of another individual, an individual who is not established by clear and convincing evidence to have survived the event by 120 hours is considered to have predeceased the event.

Except as provided in Subsection (4), if: it is not established by clear and (a) convincing evidence that one of two co-owners with right of survivorship survived the other co-owner by 120 hours, 1/2 of the property passes as if one had survived by 120 hours and 1/2 as if the other had survived by 120 hours; and there are more than two co-owners and it (b) is not established by clear and convincing evidence that at least one of them survived the others by 120 hours, the property passes in the For the proportion that one bears to the whole number of co-owners. purposes of this subsection, “co-owners with right of survivorship” includes joint tenants, tenants by the entireties, and other co-owners of property or accounts held under circumstances that entitles one or more to the whole of the property or account on the death of the other or others.

Survival by 120 hours is not required if: the governing instrument contains language (a) dealing explicitly with simultaneous deaths or deaths in a common disaster and that language is operable under the facts of the case; the governing instrument expressly (b) indicates that an individual is not required to survive an event, including the death of another individual, by any specified period or expressly requires the individual to survive the event by a specified period; but survival of the event or the specified period shall be established by clear and convincing evidence; the imposition of a 120-hour requirement (c) of survival would cause a non-vested property interest or a power of appointment to fail to qualify for validity under Section 75-2-1203 or to become invalid under Section 75-2-1203 ; but survival shall be established by clear and convincing evidence; or the application of a 120-hour requirement (d) of survival to multiple governing instruments would result in an unintended failure or duplication of a disposition; but survival shall be established by clear and convincing evidence. A payer or other third party is not liable for having made (5)(a) a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument who, under this section, is not entitled to the payment or item of property, or for having taken any other action in good faith reliance on the beneficiary’s apparent entitlement under the terms of the governing instrument, before the payer or other third party received written A payer or notice of a claimed lack of entitlement under this section. Other third party is liable for a payment made or other action taken after the payer or other third party received written notice of a claimed lack of entitlement under this section. Written notice of a claimed lack of (b) entitlement under Subsection (5)(a) shall be mailed to the payer’s or other third party’s main office or home by registered or certified mail, return receipt requested, or served upon the payer or other third party Upon receipt of in the same manner as a summons in a civil action. written notice of a claimed lack of entitlement under this section, a payer or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent’s estate, or if no proceedings have been commenced, to or with the court having jurisdiction of probate proceedings relating to the decedent’s The court estates located in the county of the decedent’s residence. Shall hold the funds or item of property and, upon its determination under this section, shall order disbursement in accordance with the Payments, transfers, or deposits made to or with the determination. Court discharge the payer or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court.

A person who purchases property for value and without (6)(a) notice, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property, or benefit nor is liable under this section for the amount of the payment But a person who, not or the value of the item of property or benefit. for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section. If this section or any part of this (b) section is pre-empted by federal law with respect to a payment, an item of property, or any other benefit covered by this section, a person who, not for value, receives the payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not pre-empted.

Requirement That Heir Survive Decedent

In addition to determine who potential heirs might be, certain states have strict survival requirements in order for heirs to inherit their shares of the intestate decedent’s estate. I thought I would take this opportunity to discuss more in depth this requirement, and how it typically takes shape. In many states (including Alaska, California, Texas, Kentucky, Wisconsin, etc.), it is required that the relevant potential heir survive the decedent by at least 120 hours–5 full days– in order to be considered an heir entitled to inherit (remember heirs are determined at the time of the decedent’s death, prior to that time the class of people we think might be heirs are referred to as heirs apparent). The reality of the 120 hour requirement, then, is that if the heir apparent fails to survive the decedent by even 119 hours, then they are not entitled to the share. What this means in practice, is that the share merely passes on to the next relevant heir. So, for example, if the person who fails to survive is the child of the decedent, then their share would merely pass to their children (or issue). The main potential downside is that the heir apparent cannot utilize their estate plan in determining what they leave to their heirs, or other beneficiaries. In any case, however, the heirs down the line will still be entitled to shares according to their relationship to the decedent.

State’s Express Intent to Avoid Escheat

This is the only explanation I can think of to explain why the Probate Code goes to great lengths detailing the order of intestate heirs, which includes predeceased spouse’s children, parents, or siblings. Additionally, even when it comes to the survival requirement, the state is willing to waive the requirement if it means the potential for escheat: The requirement of this section that a person who survives the decedent must survive the decedent by 120 hours does not apply if the application of the 120-hour survival requirement would result in the escheat of property to the state…Thus, it can be the case that the failure to survive the decedent by more than even 1 hour is sufficient enough if the only other alternative is the escheat of the property to the state. Therefore, it is more accurate to categorize this type of statute as one that attempts to streamline the process of determining heirs. If there are additional heirs, then the estate will pass to them should the 120 hour survival requirement not be fulfilled. Absent additional heirs, the buck stops with the heir apparent who failed to survive the decedent by 120 hours.

Uniform Simultaneous Death Act

The Uniform Simultaneous Death Act is a uniform act enacted in some U.S. states to alleviate the problem of simultaneous death in determining inheritance. The Act specifies that, if two or more people die within 120 hours of one another, and no will or other document provides for this situation explicitly, each is considered to have predeceased the others. However, the Act contains a clause that states if the end result would be an intestate estate escheating to the state, the 120-hour rule is not to be applied. The Act was promulgated in 1940, when it was adopted by all 48 then-existing states. It was last amended in 1993. As of 2010, 19 states (Alaska, Arizona, Arkansas, Colorado, Hawaii, Kansas, Kentucky, Massachusetts, Montana, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Ohio, Oregon, South Dakota, Utah, Virginia, and Wisconsin), as well as the District of Columbia and the Virgin Islands have explicitly adopted the Act in its current version. A number of other states have indirectly adopted the Act as part of the Uniform Probate Code. The Act primarily helps to determine the heirs of a person who has died intestate. The 120-hour period is intended to simplify estate administration by preventing an inheritance from being transferred more times than necessary.

Survivorship Periods in Wills and Trusts

A “survivorship period” is a standard feature of many wills and trust documents. A survivorship clause states that beneficiaries named in the document cannot inherit unless they live for a specific amount of time after the will- or trust-maker dies. This time is called a survivorship period, and commonly ranges from about five to 60 days. For example, a will might state that “a beneficiary must survive me for 45 days to receive property under this will.” It’s unusual to see a survivorship period longer than 60 days. If a survivorship period is more than 120 days, it could jeopardize the estate-tax-free transfer of assets from a deceased spouse to the survivor. Federal estate tax isn’t a concern for most people (more than 99.5% of estates don’t owe any tax), but even without the tax consequences, a long survivorship period isn’t necessary.

Utah Survivorship Period

Utah has a survivorship period. To inherit under Utah’s intestate succession law, the heir in question must survive the decedent by at least 120 hours. In addition, relatives conceived before you die but born after the decedent’s death are eligible to inherit as if they had been born while the decedent was alive. However, posthumous relatives must survive at least 120 hours after birth in order to be eligible for their inheritance. Immigration status is irrelevant when it comes to inheritance. If a relative of yours is entitled to a share of your assets, they can inherit no matter what their citizenship status is. Half-relatives inherit as much as “whole” relatives. For example, your half-sibling would get the same share as any other sibling. Utah considers non-probate transfers to be advancements on a relative’s share of the estate. That means if an heir receives life insurance proceeds or funds from a payable on death account, those amounts are calculated as part of that heir’s share. In addition, if you make a gift to a future heir while you are alive, and put in writing that this should be advancement on their inheritance, or if the inheritor puts it in writing, the value of the gift is subtracted from their share.