Probate & Litigation

Probate & Probate Litigation

What is probate? Probate is the process by which the estate (the assets) of a deceased person are administered and distributed with some level of court involvement.  The most common form of probate case is where the court is asked to appoint a personal representative (executor) to administer and distribute the estate of a person who either had a will (testate) or did not have a will (intestate) at the time of his or her death.  Depending on the circumstances, the appointment of the personal representative and the administration of the estate can be either by a “formal” or an “informal” process.  Probate litigation occurs when someone challenges either the appointment of the person who is seeking to be appointed as personal representative, or is trying to remove the personal representative after he or she has already been appointed, or by someone who is challenging how the estate is being administered.  Challenges regarding appointment include such issues as who has legal priority to be appointed, and whether a person who otherwise has priority should be disqualified from serving because of a history of dishonesty or other issues.  Challenges regarding administration can include such things as determining whether a document qualifies as the decedent’s will, whether a document that appears to be the decedent’s will is genuine or a forgery, whether a genuine document that otherwise qualifies as a will should not be enforced because the decedent lacked sufficient mental capacity to execute it at the time he or she signed it, or whether the document does not, in fact, reflect the genuine desires of the decedent because he or she was under the “undue influence” of someone else at the time he or she signed the will.  Probate litigation can also involve similar issues as they relate to trusts that the decedent may also have created before his or her death and the successor trustee(s) that are now charged with administering them.

A comprehensive estate plan may keep most, or even all, of your assets from having to go through the probate process after your death.  By contrast, failure to do estate planning virtually guarantees that some form of probate will be necessary.  Very frequently, however, even when good estate planning has been done, it may still be prudent to open a probate case for a decedent – even if it is only for the purpose of cutting off potential claims by unknown creditors by publishing notice that a personal representative has been appointed and asking that creditors present their claims within the next 90 days.  Fortunately for Utah residents, and the residents of most other states that have adopted the Uniform Probate Code, probate in Utah is neither as expensive nor as time consuming as many people believe.  A good probate attorney can help make the process go even more quickly and smoothly for the survivors.

Call us today at 801-505-5600 to learn more about how our Salt Lake City, Utah-based trust, estate and probate attorneys at J.D. Milliner & Associates, P.C. can help an appropriate get appointed as personal representative for the estate of your decedent, or as a successor trustee of your decedent’s trust(s), and/or help you make sure that someone doesn’t cheat you out of what your decedent intended you to receive as an inheritance.

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