Probate is simply the process by which a named executor of a Will is authorized by the court to manage the assets of the person who passed away.
Probate is governed by state law, and each state may have its own nuances on procedure and the breadth of an executor’s powers.
In Utah, the “executor” is actually called a “Personal Representative,” and will have roughly standard powers over the assets of the deceased.
In the Probate process, the Personal Representative will apply to the court for a Probate action. This entails an initial petition or “Application,” and other documents such as a certified copy of the death certificate. Named heirs, called “devisees,” are notified of the probate, as well as any creditors of the estate.
In Utah there are two levels of Probate proceedings: Formal Probate, and Informal Probate.
Informal Probate is the path for estates that are not insolvent (essentially, bankrupt) and are not disputed. Insolvency or a dispute will automatically require that the Probate be formal. Informal Probate is much faster and less expensive than Formal Probate, requiring no in-court hearings and often taking only a week or two after all paperwork has been filed in the court before the court order, called “Letters Testamentary,” is issued.
Formal Probate is the standard path, and the one which has given rise to so many horror stories. However, even though it takes a lot longer, and can cost substantially more than Informal Probate, it’s actually not all that bad… unless someone disputing the estate really makes things drag out. Formal probate requires that the court itself give notice to heirs or devisees, and to creditors, and then the court has to wait a particular length of time to allow interested parties to make an appearance in one form or another. Hearings follow, and in the end, the court will apply the statutory law and case law to the facts of that particular case, and make a determination as to how things will be administered in the estate.
Intestacy Proceedings:
If the person who passed away did so without a valid Will, then Intestacy Proceedings are the path to administering the estate. This is an over-simplification, but think of Intestacy Proceedings as Formal Probate but in place of a valid Will, the state’s probate statutes determine what goes where. In general, most states will authorize someone as a Personal Representative (Administrator of the Estate), and the assets will be directed to the heirs at law in equal divisions at each level of relatedness.
Consanguinity:
This fancy term simply states that in intestacy there is a certain order of priority for distribution of assets. Here’s the list (missing details, of course, for easy readability):
- Surviving spouse. If no surviving spouse, then
- Children of the deceased by blood (or possibly adoption). If no surviving children, then
- Parents of the deceased. If no surviving parents, then
- Siblings (brothers and sisters) of the deceased.
- Beyond that, the rules of consanguinity can vary a lot between states
There are more details about Formal Probate and Informal Probate on the pages linked to by clicking on the words.