Wills and Probate


A Will is contested when a distributee or heir at law feels slighted by the testator’s choice of property distribution. Such a challenge may have valid grounds such as improper execution (e.g., the testator did not properly sign it), the testator lacked testamentary capacity (e.g., he did not understand what he was doing), the Will contains a mistake, or it is the result of fraud, undue influence, duress, or insane delusion. A Will contested can be a lengthy and costly affair and create bitterness among family members, so the guidance of a Utah contested wills lawyer may be critical.  As an estate lawyer, we see this all the time.

Utah law provides procedures for the contest of a Will.  These proceedings take place in the Utah Surrogate’s Court.  The persons that have a right to contest a Will are usually the decedent’s next of kin or distributees.  These are the individuals that would receive the estate assets through intestacy if the decedent did not have a Will.  The decedent’s distributees are determined by reference to Utah Estates, Powers and Trusts Law Section 4-1.1.  This statute entitled “Descent and distribution of a decedent’s estate” provides a list of persons who have priority of inheritance beginning with a spouse and children, parents, brothers and sisters and then more remote descendants.  All distributees are required to receive notification from the Court when a Will is filed for probate.  The Court issues a document called a Citation which needs to be served upon all distributees.  The Citation contains a Court date when the distributees can appear in Court and advise the Surrogate that he or she intends to file Objections to the Will.

It is important to recognize that even where the decedent had no contact with certain relatives during life, if these relatives are the closest living distributees at the time of death, they must be provided with notice of the Probate Proceeding and have a right to contest the Will and file objections in the Surrogate’s Court. A contested wills lawyer can advise Utah residents on this process.

Estate Litigation attorneys are aware of the many statutes that can be referred to in contest proceedings.  One of the most important laws is contained in Surrogate’s Court Procedure Act 1404.  These provisions allow a party who is considering to file objections to a Will to obtain papers and testimony from the attesting witnesses and the lawyer that drafted the Will.  This discovery information is important in deciding whether to start a contest and decide if there is a basis upon which a Will can be invalidated due to undue influence or lack of testamentary capacity or other grounds.  Most of the time the Court does not invalidate a Will because there is a preference to have the decedent’s desires as expressed in a writing prevail over the statutory disposition to distributees.  However, where there is demonstrated proof that a Will is not valid, a person filing a Will contest in Utah can succeed.

wills and probate

Executor vs. Administrator

In terms of their duties, there is no difference between an Executor vs. Administrator. The difference is the way in which they have been appointed. An Executor is nominated within the Will of a deceased person. If there is no Will, an Administrator is appointed by a Court to manage or administer a decedent’s estate. A Utah estate planning lawyer can help explain their different roles.

The Court procedure for the appointment of an Executor involves the probate of a Will. The Court procedure for the appointment of an Administrator is different since there is no Will involved. However, whether an Administrator or Executor is appointed, they each have numerous powers and obligations regarding the handling of estate affairs. In the case of an Executor, the estate is distributed in accordance with the Will. An Administrator distributes an estate according to the laws of intestate succession-i.e. to the decedent’s statutory next-of-kin. In terms of your wishes, it’s best to have a Will and a named Executor that you know and trust. If you really want to avoid having the Court appoint an Administrator, then it’s a good idea to appoint more than one Executor or an alternate Executor.

The appointment of an Administrator in an intestate estate in Utah can result in many complications, through which an attorney can guide you.  The Surrogate’s Court filing procedures require that the Court be provided with kinship information describing in detail the family tree of the decedent.  It may be difficult to complete a Kinship Affidavit especially where the decedent does not have close family members such as a spouse or children. When the next of kin of a decedent are unknown or very distant in relation such as cousins, the intestate administration may be given to the Public Administrator.  As a government official in each county, the Public Administrator will be appointed by the Court as the estate Administrator.

The family members may then be required to prove their relationship to the decedent through a Kinship Hearing, in which the assistance of a lawyer may be useful. These hearings can be very complex and the relatives are required to show both the maternal and paternal ancestors by proof in the form of certified documents such as birth, marriage and death records. Such proof can be difficult to obtain particularly where family members have lost touch over the years and may have lived and died in different states or counties.

Another complication in Administration cases is that the Court may require an Administrator to post a surety bond to secure the safety of estate assets.  Most Wills contain a provision waiving the requirement of a bond.

Free Consultation with a Wills and Probate Lawyer

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

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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Source of Article:  http://www.ascentlawfirm.com/wills-and-probate/

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