Probate

Probate attorneys with Abbott Law Firm bring the a high level of experience, skill and knowledge to a wide range of probate, estate and contested guardianship litigation. We seek a prompt resolution to disputes, while protecting and advancing our client’s interests at all times.

What is Probate?

Probate serves two purposes.  First, Probate is a civil action to establish that a certain document was intended by a decedent to be his or her Last Will and Testament and to determine whether that document is valid under the law. Second, Probate litigation names a person to manage the estate and wind down the financial affairs of the estate.

Probate is required when a will is contested or when assets must be transferred to the heirs.

The most common type of probate litigation is simply to designate a personal representative.  These actions are often uncontested.  One example of when they are necessary is when the decedent held real estate in his or her name.  A personal representative of the estate must be appointed by a court in order to be able to sign an effective deed transferring title to the heirs.  A less common type of probate is the will contest.  A will contest is a court action challenging the validity of a will. A variety of grounds exist under Utah law to challenge the validity of a will:

  1. Noncompliance with formalities – The focus is on whether the will meets the statutory requirements as to form and execution. Generally, at a minimum, a will must be in writing and signed by the testator and two witnesses.
  2. Revocation – The inquiry is to determine whether the will was revoked by the testator. When a contestant believes that the will filed for admittance to probate has been revoked by the testator, he or she must prove that the will was revoked by (a) the execution of a new will or of a codicil, (b) a subsequent divorce or marriage, or (c) an express act.
  3. Lack of capacity – The issue is whether the testator lacked the mental capacity to make the will. Will contests based upon the testator’s lack of mental capacity are very common types of testamentary challenges. Testamentary capacity typically requires that a testator have sufficient mental acuity to understand (a) the amount and nature of his or her property, (b) the natural objects of his or her bounty, i.e., the family members and loved ones who would ordinarily receive such property by will, and (c) how his or her will disposes of such property. Simply because an individual has a form of mental illness or disease does not mean that he or she automatically lacks the requisite mental capacity to make a Last Will and Testament.
  4. Fraud – The issues are whether the testator was defrauded into signing a document, through intentional misrepresentation or concealment of a material fact which induced the testator to sign the will.
  5. Forgery – This claim involves the execution of a purported will by someone other than the testator.
  6. Mistake – The inquiry involves whether the testator was mistaken about the nature of the document, about the contents of the will or about an underlying fact which caused the testator to sign the will based on an inaccurate belief. The contestant has the burden to prove that the testator’s will did not comport with the testator’s intent.
  7. Undue Influence –  Undue influence refers to as “mental, moral or physical persuasion which has destroyed the free agency of a testator by preventing the testator from following the dictates of his own mind and accepting instead the domination and influence of another”. An undue influence challenge relates to whether the testator made a will freely, without being coerced by another person or persons. For example, a family member or acquaintance might pressure a frail, elderly person to leave most or all of his or her assets to that individual, while excluding others who would typically receive an inheritance. To prove that the will was made under undue influence, one must show that a beneficiary exercised such influence over the maker of a will so as to override the deceased’s true desires. To prove undue influence, courts will consider evidence relating to (1) old age or illness; (2) whether the person signing the will lived under the control and supervision of the beneficiary; (3) whether the will replaced a prior will; (4) whether the will was made in favor of a non-relative; (5) whether family members were disinherited; and (6) whether the beneficiary hired a lawyer to draft the will or otherwise arranged for its creation.

Do I Need to File a Probate?

The answer is maybe.  Utah probate law allows small estates to be resolved without filing a probate.  Small estates are defined as those with a value of less than $100,000.  The small estate exception only works when there is not disagreement among heirs on who should get what.  The procedure for transferring property without probating a small estate is to fill out an affidavit and then deliver the affidavit to the title holder of the property (bank, etc.)  Click here to get a free copy of a small estate affidavit.  Click here to get a free copy of a small estate affidavit for transfer of title to a vehicle.

In all other cases, you will need to file a probate.

Do I Need an Attorney to File a Probate?

The answer is yes.  Utah law gives you the right to represent yourself in court.  That is called pro se litigation.  Utah law prohibits anyone except lawyers from representing someone else in court.  To file a probate, you must represent the estate of the deceased.  Therefore, you must hire a lawyer.